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Cj  c ‘■l^nu  t+-  7 t^/o2-<x 


THE  following  Numbers  originally  appeared  in  the 
Charleston  Mercury,  and  arc  now  re-published  at  the 
desire  of  many  persons,  who  think,  that  they  are  of  too 
much  interest  to  remain  scattered  over  the  columns  of  many 
Newspapers.  The  Editor  has  taken  the  liberty  of  making 
a few  trifling  alterations,  which,  he  hopes , the  Author, 
( whoever  he  may  be ) will  readily  excuse.  The  principal 
alterations,  are  such,  as  were  necessary  in  the  change,  from 
a i Newspaper  to  a Pamphlet  form,  and  in  none  of  them , has 
the  sense,  Or  the  style,  been  in  the  least  degree  varied. 


eavolfnttHSfo 


NO.  1. 


A Pamphlet  has  just  been  issued  from  the  press  of  Mr. 

Sebring,  entitled  “ The  opinion  of  the  Hon.  Wil- 
liam Johnson,  delivered  on  the  7th  of  August,  1823,  in  the 
case  of  the  arrest  of  a British  Seaman  under  the  3d  section  of 
the  State  act,  entitled  £ An  Act  for  the  better  regulation  of 
free  negroes  and  persons  of  colour,  and  for  other  purposes,’ 
passed  in  December  last.” 

It  may  not  be  generally  known,  that  Henry  Elkison, 
the  affiove  named  seaman,  who  is  styled  a British  subject,  is 
a mulatto.  But  whether  he  was  born  in  the  island  of  Jamai- 
ca, as  stated  by  himself,  or  whether  he  be  some  fugitive  slave 
from  a Southern  State,  it  would  puzzle  any  of  us  to  say.  His 
captain,  it  seems",  had  known  him  several  years,  as  sailing 
out  of  Liverpool;  but  there  was  no  proof,  excepting  the  pri- 
soner’s own  affidavit,  that  he  was  born  in  Jamaica.  In  this 
state,  a black  cannot  make  an  affidavit.  Admitting,  how- 
ever, that  he  was  born  in  Jamaica,  still  that  circumstance 
does  not  make  him  a British  subject.  In  Jamaica,  “ the  only 
descendants  of  negroes  by  white  people,  entitled  by  birth,  to 
all  the  rights  and  liberties  of  white  subjects,  are  such,  as  are 
above  three  steps  removed  in  lineal  digression  from  the  ne- 
gro venter.  All  below  this,  whether  called  Mestizoes,  Qua- 
drons,  or  Mulattoes,  are  deemed  by  law  Mulattoes.”  Thus 
then  it  appears,  as  clear  as  noon-day,  that  Henry  Elkison, 
if  he  were  at  this  day  in  the  island  of  Jamaica,  would  by 
reason  of  his  not  being  one  degree  removed  from  the  negro 
ancestor,  be  deemed  by  law,  incapable  of  enjoying  the  privi- 
leges of  a British  subject ; and  how  a man,  who,  by  the  laws  of 
that  islapd,  might,  perhaps,  be  subject  to  be  tried  by  the  ne?_ 


4 

gro  act,  by  justices  and  freeholders,  as  is  the  law  here,  can 
be  transformed,  into  a bona  fide  British  subject,  without  be- 
ing naturalized  by  an  act  of  Parliament,  I am  yet  to  learn. 
That  a negro  is  free,  as  soon  as  he  sets  his  foot  on  the  soil  of 
England,  so  far,  as  to  be  beyond  the  power  of  bis  master , we 
all  know  to  be  the  case ; but  this  circumstance  makes  him  no 
more  a British  subject,  than  it  would  make  the  writer  himself 
a British  subject  by  going  to  that  country. 

The  view  of  this  case,  however,  cannot  be  materially  vari- 
ed, whether  we  regard  him,  as  entitled  in  Jamaica,  to  the  ci- 
vil rights  of  the  whites,  or  not.  The  moment  he  touches  the 
soil  of  Carolina,  he  is  as  much  subject  to  our  police  regula- 
tions, and  to  all  the  disabilities  of  his  race,  as  if  he  had  been 
born  in  this  city.  This  has  been  the  law  of  South-Carohna 
from  her  earliest  history.  The  different  statutes  which  im- 
pose these  disabilities,  and  which,  at  the  same  time,  make- 
slavery,  the  fundamental  policy  of  the  state,  are  not  of  recent 
date.  Some  of  them  have  existed  near  a century.  They  are 
all  o t'  British  origin,  and  since  the  Independence  of  the  Unit- 
ed States,  they  have  never  received  any  alterations  or  amend- 
ments, which  have  not  recognized  the  same  spirit  and  the 
same  principles. 

Henry  Elkison  then,  a mulatto,  as  dark  as  any  in  his  Ma- 
jesty’s West  Indies,  comes  into  this  port  contrary  to  law.  He 
is  arrested  by  the  Sheriff,  for  the  purpose  of  being  confined  in 
jail,  until  the  vessel  in  which  he  came,  shall  be  ready  to  de- 
part the  state.  He  applies  to  a Judge  of  the  United  States 
Court,  for  an  habeas  corpus  ad  subjiciendum , and  should  he 
fail  in  that  motion,  then  for  the  writ  de  homine  replegiando. 
The  Judge  hears  the  case,  and  in  a very  elaborate  opinion, 
after  many  observations  and  arguments,  which  irresistably 
lead  the  reader  to  suppose,  that  he  is  about  to  discharge  the 
prisoner,  he  suddenly  comes  to  a conclusion.  First,  that  he 
has  no  power  to  grant  the  habeas  corpus : and,  secondly, 
that  as  to  the  writ  de  homine  replegiando,  it  was  a matter  of 
course  to  any  citizen.  That  he  had  no  power  to  refuse  it,  but 
hints  extra  judicially,  that  though  it  would  certainly  lie 
against  the  vendee  of  the  Sheriff,  he  had  serious  doubts  whe- 
ther it  would  be  against  theSheriff  himself,  suggesting,  at  the 
same  time,  that  the  proper  remedy  for  this  black  seaman, 
Avould  be  trespass  for  false  imprisonment  (my  blood  freezes 


5 

at  the  thought)  against  the  Sheriff.  The  Judge  Anally  extends 
no  relief  to  the  prisoner,  but  leaves  Henry  Elkison  exactly 
where  he  found  him,  namely,  in  the  hands  of  the  Sheriff,  com- 
fortably lodged  in  the  jail  of  the  district,  where  he  will  quiet- 
ly remain  until  the  ship  Homer,  which  brought  him  into  this 
port,  shall  be  ready  to  sail. 

That  the  Judge’s  final  conclusions  were  correct,  no  one,  I 
believe,  is  disposed  to  deny.  His  opinion  so  far,  must  give 
general  satisfaction.  But  why  his  Honor  should,  extra  ju- 
dicially’,  give  his  opinion  upon  so  delicate  a subject,  as  that 
which  necessarily  involves  a question  of  collision  between  the 
State  and  General  Governments,  when  he  might  so  easily 
have  avoided  it,  and  when  his  opinion  rested  on  grounds  en- 
tirely independent  of  such  considerations,  must  be  a matter  of 
surprise  to  most  persons.  There  was  not  the  least  necessity 
for  his  deciding  upon  the  constitutionality  of  the  State  Act. 
Still  less  was  it  necessary,  for  him,  to  introduce  such  a mass 
of  extraneous  matter  as  is  contained  in  this  opinion,  and  there- 
in to  depict  in  colors,  the  most  odious  and  frightful,  an  en- 
actment of  the  Legislature  of  his  native  State,  than  which 
none  can  possibly  be  more  important,  as  none  certainly  will 
conduce  more  to  the  quiet  and  good  order  of  the  State.  The 
case  before  him,  lay  in  the  narrowest  compass  possible.  The 
merits  of  the  motion  were  in  a nut-shell.  He  denies  the  ha- 
beas corpus , because  the  14th  section  of  the  Judiciary  Act  of 
the  United  States  expressly  restrains  him,  and  he  decides,  he 
is  not  at  liberty  to  refuse  the  other  antiquated  writ,  not  be- 
cause the  State  Act  was  unconstitutional,  but  because,  being 
a writ  infavorcm  libertatis,  the  petitioner  might  sue  it  as  a 
matter  of  course,  as  he  could  any  other  writ. 

Here,  then,  tvas  an  admirable  opportunity  for  any  man,  who 
enters  into  the  sympathies  and  feelings  of  his  fellow-citizens, 
(and  they  are  holy  sympathies)  to  have  steered  clear  of  a sub- 
ject, on  which,  whatever  might  have  been  his  private  opinion, 
there  was  not  the  least  necessity  for  expressing  it.  This  opi- 
nion formed  no  part  of  the  grounds  of  his  decision.  His  duty 
I aver,  did  not  necessarily  demand  from  him,  any  considera- 
tion of  the  question  of  constitutionality.  Neither  was  it  a 
part  of  his  duty  to  reflect  upon  the  Legislature,  or  to  hint 
what  he  conceives  to  be  an  untimely  exhibition  of  legis- 
lation and  zeal’’  acting  by  means  and  mettsures,  which  he 
*1 


6 

makes  out  by  an  ingenious  mode  of  reasoning  to  be  absurd  in 
the^xtreme.  As  he  could  give  no  relief,  or  take  no  jurisdic- 
tion, why  not  have  stopped  prudently  at  this  point.  As  his 
grounds  were  purely  legal,  nothing  would  have  been  easier, 
than  to  have  expressed  his  unwillingness,  to  enter  upon  a 
question,  which,  at  all  times,  and  under  any  circumstances, 
must  be  painful  to  any  Judge,  or  to  any  man  who  is  born  in 
the  Southern  States. 

It  may  be  said,  that  the  Counsel  for  the  prisoner,  took  the 
ground  of  the  State  having  transcended  its  powers  in  pass- 
ing the  Act.  This  is  true.  But  the  Judge  is  not  bound  to 
notice  arguments  of  Counsel,  of  which  the  question  is  unem- 
barrassed. More  especially,  when,  by  so  doing,  he  would 
have  to  express  sentiments  and  opinions,  which  I hope  and 
trust,  will  for  ever  be  uncongenial  to  the  citizens  of  this 
State — sentiments  and  opinions,  which  never  can  do  the 
least  possible  good,  but  the  publication  of  which  may  be 
productive  of  serious  and  incalculable  mischief,  to  the  parti- 
ticular  community  in  which  we  live. 


no.  a. 


I.  have  stated,  that  much  of  Judge  Johnson’s  opinion,  was 
unnecessary  and  irrevelant,  and  I have  hinted,  that  the  ex- 
traneous matter  contained  in  it,  was  improper  for  publica- 
tion. It  has  been  said,  and  I believe,  upon  undoubted  au- 
thority, that  this  opinion  was  in  the  hands  of  the  Editor,  of 
one  of  our  Gazettes,  who  respectfully  suggested  to  the  Judge 
fys  doubts  as  to  the  propriety  of  giving  it  more  publicity  than 
it  had  already  received,  and  who  finally  declined  inserting  it 
in  the  columns  of  his  paper.  The  opinion,  however,  now 
appears  in  a pamplet  form  and  is  advertised  for  sale.  By 
whose  authority  it  is  published  does  not  appear.  Like  any 
other  pamphlet,  I presume,  every  citizen  who  purchases  it, 
has  a right  to  remark  upon  it,  without  being  charged  with 
(disrespect  to  the  Court.  It  is  far  from  my  intention  to  with- 
hold from  the  Judges  of  the  land,  the  respect  due  to  their  sa- 
cred characters.  In  the  pure  and  upright  administration  of 
justice,  is  to  be  found  not  the  form,  but  the  very  substance  of 


7 

rational  freedom.  Their  decisions  on  subjects  referred  to 
them,  must,  and  I trust,  will  forever  be  held  sacred.  I am 
sensible  that  no  one  has  a right  to  canvass  or  discuss  them  in 
the  columns  of  a newspaper ; and,  so  determined  am  I,  to  ad- 
here to  this  course,  that  nothing  would  induce  me,  whatever 
might  be  my  opinion,  to  remark  upon  an  opinion  of  the 
Bench,  judicially  delivered.  But  such  parts  of  a Judge’s  opi- 
nion, as  are  extra  judicial,  (and  I hold  every  thing  to  be  ex- 
tra judicial  which  does  not  form  a ground  of  the  decision)  I 
do  deem  to  be  a fair  and  a fit  subject  of  criticism  and  remark. 
Added  to  this,  when  a law  of  the  State,  in  which  I live,  and 
may  probably  die ; I and  my  friends  and  relatives,  all  most 
dear  to  me — a law  which  the  Legislature  of  our  country 
deliberately  passes,  to  secure  the  quiet  and  security  of  us  all, 
is  animadverted  on  with  severity,  and  such  a view  taken  of  all 
its  wholesome  provisions,  as  has  a tendency  to  bring  my 
country  into  contempt  at  home  and  abroad — when  this  view 
forms  no  part  of  the  legal  or  other  grounds  of  the  decision — 
when  sentiments  of  this  tendency  are  uttered  from  the  Bench, 
which  the  case  before  the  Court  does  not  demand,  I conceive 

I have  the  right,  and  it  is  a right  which  as  a freeman  of  South- 
Carolina  I will  always  exercise,  to  remark  freely  upon  any 
decision  thus  circumstanced.  It  is  as  much  my  duty  to  vin- 
dicate my  country,  from  what  I conceive  an  unprovoked  and 
unmerited' imputation  cast  upon  her  extra  judicially,  from  the 
Bench,  as  if  it  came  from  any  other  quarter. 

The  most  prominent  part  of  the  publication  before  us,  is 
the  commencement  of  the  Judge’s  view  ^qf  the  State  Law. 
The  Judge  says — “ The  object  of  this  law,  and  it  has  been 
“ so  acknowledged  in  argument,  is  to  prohibit  ships  coming 
“ into  this  port  from  employing  colored  seamen,*  whether 
<(  citizens  or  subjects  of  their  own  government  or  not.  But 

II  if  this  State  can  prohibit  Great  Britain  from  employing  her 
tl  colored  subjects,  (and  she  has  them  of  all  colors  on  the 
(i  globe)  or  if  at  liberty  to  prohibit  the  employment  of  her 
“ subjects  of  the  African  race,  why  not  prohibit  her  from 
“ using  those  of  Irish  or  of  Scottish  nativity ; if  the  color  of 
“ his  skin  is  to  preclude  the  Lascar,  or  the  Sierra  Leone  sea- 
“ man,  why  not  the  color  of  his  eye  or  his  hair  exclude  from 

* The  words  of  the  Act  are  “ persons  of  color.’4 


(\ 

o 

(l  our  ports  the  inhabitants  of  her  other  territories  ? In  fact  it 
“ amounts  to  the  assertion  of  the  power  to  exclude  the  sea- 
“ men  of  the  territories  of  Great  Britain,  or  any  other  nation 
“ altogether.  With  regard  to  various  friendly  nations,  it 
“ amounts  to  an  actual  exclusion  in  its  present  form.  Why 
“ may  not  the  shipping  of  Morocco  or  of  Algiers  cover  the 
c<  commerce  of  France  with  this  country,  even  at  the  present 
<l  crisis  ? Their  seamen  are  all  colored,  and  even  the  State  of 
w Massachusetts,  might  lately, and  may  perhaps  now,  expedite 
* to  this  port  a vessel,  with  her  Officers  Black , and  her  crew 
Ci  composed  of  Nantucket  Indians,  known  to  be  amongst  the 
£<  best  seamen  in  our  service.  These  might  all  become  slaves 
“ under  this  act.” 

What  I ask  is  the  meaning  of  the  foregoing  sentences  ? It 
is  neither  more  nor  less,  than  that  the  law  in  its  present  form, 
that  is,  in  forbidding  the  ingress  of  :i  persons  of  color”  ex- 
cludes the  subjects  of  Morocco  and  of  Algiers  and  the  Nan- 
tucket Indian  seamen  from  coming  to  our  shores.  That  all 
these  persons,  in  a word,  would  be  liable  to  be  seized  under 
the  Act,  as  persons  of  color , and  sold  as  absolute  slaves.  If 
this  be  not  the  clear  meaning  of  the  Judge,  or  if  it  is  possible, 
for  human  ingenuity,  to  annex  to  his  words  any  other  mean- 
ing, then,  the  simplest  and  the  plainest  words  in  our  language 
have  no  signification,  and  there  is  no  longer  use  for  a lan- 
guage The  words  of  the  Judge  are  emphatic — “ With  re- 
gard to  various  friendly  nations,”  says  he,  “it  amountsto  an 
actual  exclusion  in  its  present  form.”  What,  amounts  to  an 
exclusion  ? The  Law  in  its  present  form.  Exclusion  of 
whom  ? The  friendly  Moors  and  Algerines,  and  also  the 
Nantucket  Indians,  who  might  now  be  on  their  way  hither. 
These,  says  he,  might  all  become  slaves  under  this  Act. 

Here  then  is  an  opinion,  extra  judicially  expressed,  that 
under  our  Law  in  its  present  form,  the  Moor,  the  Algerine, 
and  the  Nantucket  Indian  sailor,  may  betaken  up  as  persons 
of  color  and  sold  as  slaves.  This  opinion,  in  a pamphlet  it 
must  be  remembered,  is  not  to  be  confined  to  Charleston.  It 
will  probably  go  to  Washington,  and  from  thence  to  the  Brit- 
ish Cabinet,  after  going  the  rounds  of  the  Northern  States. — 
Will  not  then  our  State  abroad  suffer  in  her  reputation,  when 
this  is  declared  to  be  the  law  of  this  land  ? Is  not  the  very 
assertion  calculated  to  produce,  in  Massachusetts,  the  greatest 


9 

possible  feeling  and  excitement  against  us,  when  a Judge 
from  the  Bench  of  the  United  States,  tells  them,  that  their 
Indian  seamen  of  Nantucket,  whom  he  values  as  amongst 
the  best  seamen  in  our  service,  may,  on  their  landing  here,  be 
taken  and  sold  as  slaves  ? But  how,  my  fellow-citizens,  stands 
the  fact  ? The  assertion  I aver,  is  destitute  of  foundation.  It 
is  an  unprovoked  and  unmerited  reflection  on  the  State.  It 
is  a libel  on  our  jurisprudence  and  our  laws,  for  any  man  to 
assert,  be  his  station  or  character  what  it  may,  that  any  of  the 
above  named  persons  could  be  seized  as  persons  of  color. — 
I do  sincerely  believe,  that  since  Carolina  was  first  settled,  it 
never  was  heard  of,  or  supposed,  that  any  person  could  be 
subject  to  our  laws  but  the  descendants  of  negroes.  A free 
North  American  Indian,  a Lascar,  an  East  Indian,  a Hin- 
doo, or  a Moor,  may  traverse  our  streets  unmolested  by  the 
patrol  or  night  guard ; may  give  evidence  in  our  courts  of  jus- 
tice, and  claim  the  same  right  to  trial  by  jury,  &c.  as  our 
white  citizens  can  claim.  It  was  only  the  other  day,  that  a 
Lascar  in  this  city,  gave  his  evidence  in  our  State  Court,  on 
a criminal  prosecution  against  a white  man.  Our  Courts 
have  decided,  that  none  of  these  persons,  (particularly  free 
Moors)  were  ever  contemplated  as  coming  within  the  mean- 
ing of  our  laws  to  regulate  the  conduct  of  our  negroes,  or 
persons  of  color.  Every  day  persons  of  color,  whose  blood, 
on  the  mother’s  side,  is  Indian,  are  exempted  from  the  state 
tax  imposed  upon  persons  of  color,  and  allowed  many  of 
the  privileges  of  white  men.  There  is  not  a student  of  law;  there 
is  scarcely  a citizen, who  is  ignorant,  that  the  only  persons  not 
black,  who  come  under  the  operation  of  our  negro  acts,  as  they 
are  called,  are  Mulattoes  and  Mestizoes,  and  their  descendants. 
Even  Mestizoes  are  exempted  occasionally,  on  proof  of  the  mo- 
ther Jjeing  a free  Indian.  The  maxim  of  the  civil  law,  partus 
sequitur  ventrem,  is  expressly  incorporated  into  our  code  noir 
by  a very  old  statute,  and  forms  the  foundation  of  the  dis- 
tinction in  all  these  cases.  The  term  “ persons  of  color,”  is 
a term  of  as  settled  signification  and  import  as  any  to  be  found 
in  our  laws,  or  in  common  parlance.  It  is  a term  in  general 
use  all  over  the  West-Indies,  and  is  never  applied  to  any  per-' 
sons  but  those  of  mixed  blood,  and  who  are  descended  from 
negroes.  The  different  classes  and  varieties  are  differently 
discriminated  in  the  different  islands.  According  to  Bryan 


10 

Edwards,  than  whom  there  cannot  be  a higher  authorit}', 
persons  of  color  are  known  in  the  British  West-Indies  by  the 
names  of  Samboes,  Mulattoes , Quadroons  and  Mestizoes. — 
Among  the  Spaniards,  the  distinctions  are  nicer,  and  more 
numerous.  Don  Antonio  de  Ulloa,  in  his  description  of  the 
inhabitants  of  Carthagena,  ranks  them  as  Mulattoes,  Terce- 
rones,  Q&urterones , Quinterones,  &c.  &c.  The  French  also 
have  their  distinctions,  which  do  not  vary  considerably  from 
the  British  or  Spaniards.  But  in  each,  and  all  of  the  islands, 
all  these  persons  are  comprehended  in-  one  class,  and  this 
class,  by  general  consent,  is  called,  “people  or  persons  of 
color  ' It  is  a generic,  term,  the  most  comprehensive  that  can 
be  used,  because  it  includes  the  descendants  of  negroes  to  the 
thousandth  generation.  Our  Legislature  has  used  it  of  late 
familiarly,  no  doubt  for  the  very  reason,  that  as  it  is  the  most 
comprehensive,  embracing  all  the  varieties  of  the  Mulatto 
tribes,  so  it  must  be  the  most  appropriate. 

How  strange  then,  that  a Judge  of  the  United  States,  who 
has  been  bred  at  our  bar,  and  who  ought  to  know  the  deci- 
sions of  our  State  Courts,  and  the  meaning  of  a term  in  such 
use  in  all  states  in  which  slavery  exists,  much  better  than  the 
humble  unaspiring  writer  of  these  lines;  how  strange,  I re- 
peat, is  it,  that  it  should  be  proclamed  from  his  seat  on  the 
Bench,  that  a Lascar,  that  a Moor,  and  last  of  all,  that  a 
Nantucket  Indian  seaman,  in  whose  veins  flows  the  blood, 
not  altogether  of  Pocahontas,  of  which  John  Randolph  is  so 
proud,  but  the  blood  of  the  aboriginal  of  the  forest,  pure  and 
as  free  as  the  air  which  he  breathes, can  betaken  up  in  South- 
Carolina  as  a person  of  color ; and,  without  the  form  of  a trial, 
sold  and  deemed  a slave  forever.  Shall  an  assertion  so 
groundless  as  this ; shall  an  imputation  so  dishonorable,  go 
forth  with  this  pamphlet  to  the  world  as  the  law  of  South- 
Carolina  ? Never,  I trust,  whilst  a pen  can  be  wielded  by 
Caroliniensis. 


NO.  3. 

The  Judge,  in  the  pamphlet  before  us,  not  satisfied  with 
giving  the  dreadful  picture  of  South-Carolina  legislation  pre- 
sented in  my  last  number,  takes  another  view  of  the  State 


11 

Act  equally  as  odious.  He  tells  us,  that  the  offence  for  which 
the  colored  seaman  is  to  forfeit  his  freedom,  is  simply,  that  of 
coming  into  port  in  the  capacity  of  a seaman — that  if  the 
captain  refuses  to  carry  him  away  agreeably  to  the  directions 
of  the  Act,  or  is  desirous,  from  caprice  or  selfish  motives,  to 
doom  him  to  slavery,  that  it  is  in  his  power  so  to  do — that  he 
then,  without  the  form  even  of  a trial,  becomes  an  absolute 
slave,  though  his  removal  from  the  State  depends  not  on  him- 
self, but  on  his  captain — that  the  forfeiture  of  freedom  is  in- 
curred by  the  single  act  of  coming  into  port,  and  this  even 
though  driven  in  by  stress  of  weather,  or  forced  by  a power 
which  he  cannot  control,  into  a port  for  which  he  did  not 
ship  himself.  The  law,  says  the  Judge,  contains  no  excep- 
tion to  meet  such  contingencies. 

A miserable  portrait,  indeed,  is  this  of  Carolina  legislation, 
and  of  Southern  policy  ! A poor  hard-working  mariner,  after 
braving  the  dangers  of  the  ocean ; after  hair-breadth  ’scapes 
from  pirates  and  murderers ; after  encountering  hardships  in 
every  form,  comes  into  our  port  hitherto  so  hospitable,  or  is 
driven  hither  by  the  merciless  winds  and  waves,  with  his  lit- 
tle treasure,  and  his  hopes  stranded  on  the  sands.  In  either 
event,  says  our  Judge,  “ if  his  captain  finds  it  his  interest  or 
his  pleasure  to  get  rid  of  him  and  of  the  wages  due  him,  his 
fate  is  suspended  upon  the  captain’s  caprice  in  this  particu- 
lar,” and  he  may  be  sold  as  a slave.  Can  this  be  so,  my  fel- 
low-countrymen ? Is  there  such  a law  on  our  statute  book  ? 
Is  there  no  relief?  The  Judge  says  none.  Forbid  it  Heaven ! 
I would  not  live  in  a country  so  palpably  and  barbarously 
Unjust.  What  ! To  have  a man’s  liberty  cloven  down,  be- 
cause shipwreck  has  cast  him  out  upon  us.  The  Arabs  of 
the  Great  Desart,  described  by  Riley,  are  not  worse  than 
this — their  captives  have  a Herald  of  Mercy  at  Mogadore. 

“ Is  there  not  some  hidden  curse. 

Some  chosen  thunder  in  the  stores  of  Heaven 
Red  with  uncommon  wrath” 

to  blast  the  land  that  would  deal  so  cruelly  with  the  sons  of 
misfortune.  But  it  is  not  so.  There  is  not,  my  fellow-citiz- 
ens, the  least  ground  for  such  an  opinion.  To  give  such  a 
construction  is  not  to  do  violence  to  the  intentions  of  the  mefi 


12 

who  framed  this  law,  for  it  is  known  they  had  no  such  in- 
tention ; but  it  is  an  act  of  gross  injustice  to  them,  to  say  that 
their  words  have  any  such  meaning. 

The  mistake  into  which  the  Judge  has  precipitated  him- 
self, is  to  my  mind  clear  and  obvious.  It  does  not  appear, 
that  he  had  before  him  any  other  Act,  than  the  Act  of  the 
last  session,  Dec.  21,  1822,  for  I do  not  perceive  that  he 
makes  a single  remark  on  the  Act  of  Dec.  20,  1820.  To 
see  the  real  intentions  of  the  Legislature,  the  two  Acts 
must  be  taken  in  connection.  They  cannot  possibly  be  se- 
parated in  the  case  before  us,  if  a right  construction  be 
desired  : for  though  it  be  true,  as  stated  by  the  Judge,  that 
on  the  refusal  of  the  captain  to  carry  away  the  colored  sea- 
man, he  becomes  subject  to  a fine,  and  the  negro  is  to  be 
sold  as  an  absolute  slave ; yet  it  is  manifest  that  he  cannot 
be  sold  but  in  conformity  to  the  provisions  of  the  Act,  pass- 
ed Dec.  20,  1820.  The  words  are  11  and  sold  in  confor- 
mity to  the.  provisions  of  the  Act  passed  on  the  20 tli  Dec. 
1820,  aforesaid .”  The  connection  then,  between  the  two 
Acts,  is  now  evident.  He  is  to  be  sold  in  conformity  to  a 
previous  Act.  What  are  the  provisions  specified  in  this  Act 
of  1820?  They  are  specified  and  are  these : — “Any  free 
negro  or  person  of  color  coming  into  the  State,  contrary  to 
the  Act,  is  to  be  apprehended  and  carried  before  a magis- 
trate, which  magistrate  examines  him  and  orders  him  to  leave 
the  Slate.  If,  after  such  an  order,  he  remains  in  the  State 
longer  than  fifteen  days,  or  having  left  the  State  returns  to 
the  same,  (unless  it  be  in  consequence  of  shipwreck , or  some 
unavoidable  accident)  upon  proof  of  his  so  returning,  he  is 
subject  to  a fine  of  twenty  dollars,  and  in  default  of  payment 
may  be  sold  after  ten  days  notice,  for  a term  not  exceeding 
five  years ; and  this  penalty  is  to  be  repeated,  if  he  does  not 
depart  within  ten  days  after  payment  of  the  fine,  and  so  on.” 
The  Act  of  1822  increases  the  penalty  in  the  case  of  seamen, 
so  far  as  to  direct  an  absolute  sale  instead  of  a sale  for  a term 
of  years,  probably  on  account  of  the  greater  facility  afforded 
to  these  people  in  coming  here.  But,  in  every  other  respect, 
the  provisions  to  be  complied  with  are  the  same.  They  are 
plain  and  specific ; and  how  a construction  to  one  Act  could 
be  given  without  taking  up  the  other,  is  not  for  me  to  say. — 
Had  the  Judge  considered  the  two  Acts  in  connection,  for 


13 

die  reasons  above  stated,  he  also  would  have  seen,  that  the 
case  ol  shipwreck  is  provided  for.  But  admitting  that 
nothing  was  said  of  unavoidable  accidents,  can  it  be  con- 
tended that  a man  driven  upon  our  coast  by  a storm,  can 
be  said  to  migrate,  or  arrive  here,  or  that  “ a vessel  can 
be  said  to  come  into  the  port,”  within  the  meaning  of  the 
Act.  To  use  against  him,  the  Judge’s  own  words,  in  anoth- 
er place — “ It  is  not  too  much  to  say,  that  it  will  not  bear 
argument.”  It  is  to  tear  up  root  and  branch,  every  accus- 
tomed rule  of  construction. 

I think  then,  I have  shewn,  that  our  Legislature  have  not 
been  so  stupid  and  careless,  or  even  so  unreflecting,  as  those 
who  may  read  the  Judge’s  pamphlet  may  suppose.  If  the 
Judge  has  not  seen  the  law  in  the  light  that  it  was  viewed  by 
those  who  framed  it,  I think  I have  shewn,  that  the  fault  was 
not  theirs,  but  his. 

The  Judge  in  his  opinion,  goes  on  to  treat  the  Act  in  ques- 
tion, as  manifestly  absurd  in  its  provisions,  and  as  defeating 
its  own  ends.  He  says — If  the  policy  of  the  law  be,  to  keep 
persons  of  color  from  holding  communion  with  our  slaves,  it 
pursues  a course  inconsistent  with  its  object,  because,  says 
he,  the  penalty  which  it  inflicts  on  those  who  come  here  con- 
trary to  law,  is  to  domesticate  them,  by  being  sold  here,  and 
thereby  introduce  the  very  wild  beasts  into  our  streets,  that 
we  were  anxious  to  keep  out.  This  mode  of  reasoning,  I 
confess,  is  as  novel  to  me,  as  it  is  ingenious.  I suspect,  that 
neither  the  Judge,  nor  1,  will  ever  live  to  see  an  example  of 
it  in  practice.  To  suppose,  that  amongst  the  many  hundreds 
of  colored  people,  who  come  to  this  port  from  the  North,  and 
elsewhere,  as  stewards,  cooks,  and  mariners,  all  of  them,  no 
doubt  well  disposed  to  enlighten  the  benighted  minds  of  our 
slaves  upon  certain  subjects,  and  most  of  them  prepared  and 
instructed  to  do  so,  by  the  fraternity  they  leave  behind  them  ; 
to  suppose  that  these  people,  who  are  in  the  enjoyment  of  li- 
berty, the  liberty  too,  of  going  to  and  fro  without  molestation, 
in  employments  peculiarly  suited  to  their  habits  and  inclina- 
tions, should  willingly  incur  the  high  penalty  of  slavery , 
merely,  as  the  Judge  says,  that  their  facilities  of  doing  mis- 
chief might  be  thereby  increased,  is  to  look  for  that,  which 
probably  never  will  happen,  until  some  great  revolution  in 
the  nature  of  man  shall  take  place,  certainly  not  in  my  power 
2 


14 

to  foresee,  however  it  may  be  within  the  prescience  of  others, 
better  gifted  than  myself.  With  all  due  deference  to  this  opi- 
nion from  the  Bench  of  the  United  States,  thus  extra  judicial- 
ly expressed,  I would  say,  that  this  is  a species  of  domestica- 
tion, which  the  colored  citizens  of  theNorth,  would  rather  be 
excused  from  accepting,  upon  any  terms ; and  I would  add, 
with  deference  to  the  same  authority,  that  the  Legislature  of 
South-Carolina  have  rather  a better  knowledge  of  these  mat- 
ters than  some  folks  are  willing  to  allow  them.  The  Act,  I 
think,  an  excellent  Act,  admirably  adapted  to  attain  its  end 
and  object.  It  is  now  in  full  operation,  and  I understand 
from  those  who  ought  to  have  some  knowledge  of  the  sub- 
ject, that  the  strict  execution  of  this  Act,  is  at  this  moment 
producing  the  happiest  effects  in  our  community;  and  that 
the  probability  is,  that  in  a few  months,  perhaps  weeks,  the 
intercourse  which  is  now  maintained  with  the  North,  through 
this  most  dangerous  class  of  strangers,  will  be  entirely  at  an 
end. 


170.  4„ 


I proceed  to  vindicate  the  Legislature  from  another  charge 
extra  judicially  made  by  the  Judge,  in  the  opinion,  or  pam- 
phlet before  us. 

In  the  third  page  he  sa3rs — “ I felt  confident,  that  the  Act 
had  been  passed  hastily  and  without  due  consideration ,” — 
and  again  in  the  eleventh  page — “l  am  firmly  persuaded, 
that  the  Legislature  of  South-Carolina,  must  have  been  sur- 
prised into  the  passing  of  this  Act.”  Now,  let  me  call  the 
attention  of  my  fellow-citizens  to  the  peculiar  circumstances 
under  which  our  Legislature  last  met  at  Columbia.  The  oc- 
currences of  the  last  summer  are  too  well  known  to  be  dwelt 
on  in  this  place.  The  sensibility  which  those  occurrences 
produced;  had  not  subsided  at  the  meeting  of  the  Legislature. 
On  the  contrary,  many  circumstances  conspired  to  increase 
it.  A memorial  from  this  city,  couched  in  strong  language 
and  suited  to  the  crisis,  demanded  of  the  constituted  authori- 
ties a new  and  more  vigorous  policy.  The  delegation  from 
the  city  had  been  previously  convened,  that  by  a proper  un 


15 

derstanding,  their  efforts  should  be  more  systematical,  and  of 
course  more  successful.  The  Governor  made  these  occur- 
rences the  subject  of  a distinct  message,  well  remembered. — 
The  members  in  fact,  met  under  feelings  of  a peculiar  cha- 
racter, and  the  sense,  that  something  ought  to  be  done,  was 
general,  not  in  our  community  only,  but  in  the  State  at  large. 
Under  the  influence  then,  not  of  passion,  or  undue  excitement, 
but  of  a temperate,  a settled  and  a deliberate  conviction,  in 
the  minds  of  all,  that  our  code  must  be  revised,  and  our  laws 
amended,  the  Dill  was  introduced,  which  has  since  become 
the  subject  of  the  Judge’s  animadversion.  This  Bill,  I re- 
member, was  before  the  House  near  ten  days.  Clause  by 
clause  was  discussed  with  a spirit  and  an  eloquence  suited  to  its 
importance ; mail  after  mail  brought  to  us  the  eventful  pro- 
ceedings of  the  House,  and  the  notices  of  the  sentiments,  and 
the  speeches  of  the  members;  and  .yet,  the  author  of  this 
pamphlet  before  us,  undertakes  to  assert,  and  with  confi- 
dence too,  that  the  Legislature  of  his  country,  acted  hastily , 
and  without  due  consideration,  and  that  they  must  have  been 
surprised  into  the  passing  of  the  very  act,  the  consideration 
of  which  was  the  subject  of  animated  discussion,  and  occupi- 
ed so  great  a portion  of  their  time.  Is  this  treating  the  Re- 
presentatives of  the  State  with  a respect  due  to  their  charac- 
ters, and  to  the  high  and  important  business  upon  which  they 
were  convened  ? But  this  is  not  all.  The  author  of  the  pam- 
phlet insinuates  and  hints,  that  all  this  was  an  exhibition  of 
legislation  and  zeal,  not  demanded  by  any  necessity  he  could 
see.  After  making  out  all  the  provisions  of  the  law  to  be  ab- 
surd, and  the  Act  a felo  de  se,  he  says — “ On  the  fact  of  the 
necessity  for  all  this  exhibition  of  legislation  and  zeal,  I say 
nothing.  I neither  admit  nor  deny  it.  In  common  with 
every  other  citizen,  I am  entitled  to  my  own  opinion  : but 
when  I express  it  it  shall  be  done  in  my  private  capacity.” — 
Now  I beg  to  be  understood,  that  I would  scorn  to  give  a 
writer’s  words  a construction  which  is  unwarrantable  or  un- 
fair, for  my  motive  is  public,  and  not  personal.  But  I ask, 
my  readers,  whether  by  every  fair  mode  of  construction,  as- 
sisted as  the  passage  is  by  the  context  of  the  whole  pamphlet, 
and  its  distorted  views  of  things,  the  above  be  not  a palpable 
hit  at  the  Legislature  and  the  community  ? If  it  is  not  an  in- 
sinuation, that  there  was  useless  legislation  at  Columbia 


I 


16 

Upon  the  causes  of  the  occurrences  of  the  summer,  and  useless 
zeal  here  in  Charleston,  or  elsewhere  in  the  State,  what  then 
is  it  ? It  clearly  must  mean  something,  or  it  means  nothing. 
To  suppose  the  latter  is  absurd.  Judges  are  not  apt  to  insert 
in  their  loritten  opinions  to  be  published  to  the  world,  para- 
graphs which  are  senseless.  If  the  Judge  was  of  opinion,  that 
all  the  legislation  and  all  the  zeal  was  right  and  proper,  there 
could  be  no  harm  in  thinking,  or  even  in  saying  so.  But  if 
he  was  so  unfortunate  (a  misfortune  truly)  as  to  differ  from 
his  fellow-citizens  on  this  subject,  there  was  great  need  of 
caution  in  expressing  himself,  if  he  meant  to  convey  the  idea 
that  he  had  a private  opinion  on  that  point,  different  from 
theirs,  but  would  keep  it  to  himself.  But  why  declare  at  all 
that  he  had  an  opinion  upon  such  a point,  but  was  unwilling 
to  express  it  ? Nothing  in  the  case  called  for  this  observation : 
no  person  demanded  of  him  to  admit  or  deny,  whether  such 
was  his  opinion.  Who  could  have  dared  to  do  this?  It  is 
then,  as  I conceive,  a palpable  insinuation,  reflecting  upon  the 
community,  and  as  a citizen  of  this  community,  I repel  it. — 
An  insinuation  is  at  all  times  worse  than  a direct  open  charge. 
Is  it  the  tooth  of  the  serpent  which  inflicts  the  mortal  wound  ? 
or  is  it  the  deadly  poison  under  its  tongue,  which  insinuates 
itself  into  the  vital  fluid,  and  stops  at  once  the  springs  of 
life  ? 

I will  now  pass  to  other  parts  of  the  pamphlet,  which  re- 
flect, as  I conceive,  upon  the  authorities  of  my  country,  and 
these  consist  in  extrajudicial  mis-statements  which  I propose 
to  correct.  The  Judge,  after  giving  an  account  of  what  pass- 
ed between  himself  and  the  British  Consul,  and  the  Northern 
Captains  last  winter,  (when  many  arrests  of  colored  people 
took  place  under  the  Act)  and  of  the  influence  he  had  over 
them,  in  causing  them  to  suppress  their  complaints,  and  of  his 
instructing  Mr.  Gadsden,  the  District  Attorney,  to  make  ap- 
plication to  the  State  authorities,  and  respectfully  too,  (as  if 
Mr.  Gadsden  needed  any  instruction  on  this  head)  then  pro- 
ceeds to  assert,  that  on  application  to  the  State  authority,  the 
men  were  relieved,  but  that  the  ground  of  relief  was  not  in  its 
nature  general  or  permanent.  I must  be  permitted  to  deny 
that  any  relief  was  ever  given  by  the  State  authority.  In  all 
or  most  of  the  cases,  as  1 understand,  there  was  no  relief  giv- 
en, if  it  can  be  called  relief,  further,  than  that  the  Sheriff  on 


17 

being  importuned,  might  have  used  his  discretion,  in  giving  up 
the  men  some  little  time  before  the  vessel  sailed,  or  he  might 
have  detained  some  a very  short  time  in  confinement : but 
there  was  no  relief  regularly  given  by  any  Judge  of  the  land, 
as  I can  learn.  In  the  case  of  the  steward  of  the  Georgia 
Packet,  Capt.  Bunce,  which  was  decided  by  a single  Judge  at 
Chambers,  an  appeal  was  made  to  the  Constitutional  Court. 
There  was  there  a difference  of  opinion,  and  as  all  the  Judges 
of  the  State  were  not  present,  there  was  no  judgment  pro- 
nounced. So  that  it  is  yet  sub  judice.  Bunce’s  steward 
went  with  the  vessel,  but  was  not  relieved.  He  took  nothing 
by  his  motion.  The  importance  of  correcting  this  mis-state- 
ment will  be  seen  by  turning  to  another  part  of  the  pamphlet, 
in  which  the  Judge  conveys  the  idea,  that  the  reason  why 
there  were  no  prosecutions  after  February,  was,  that  the  State 
officers,  after  they  understood  that  the  law  was  complained  of 
on  the  ground  of  its  unconstitutionality,  and  of  its  injurions 
effects  upon  our  commerce,  were  willing  to  let  the  law  go  to 
sleep,  and  by  way  of  strengthening  this  view  of  the  case,  he 
notices  the  circumstance,  of  the  Attorney  General  not  ap- 
pearing in  the  present  case,  in  defence  of  the  State  Act,  and 
on  the  opposition  to  the  discharge  of  the  prisoner  being  con- 
ducted by  Mr.  Holmes,  Solicitor  to  the  (South-Carolina) 
Association.  Now,  I believe,  that  the  true  reason  why  there 
were  no  more  prosecutions  between  F ebruary  and  August, 
was  not  because  the  State  officers  thought  the  Act  improper 
or  unconstitutional,  but  because  the  Sheriff,  not  having  the 
cases  reported  to  him  as  usual  by  the  Harbor-Master,  whose 
duty  it  was  under  the  Act  to  do  so,  did  not  feel  it  incumbent 
on  him  to  proceed  any  further ; and  the  reason  why  the  Har- 
bor-Master discontinued  his  reports  to  the  Sheriff,  simply 
was,  as  I understand,  that  he  was  a City  and  not  a State  of- 
ficer, and  felt  reluctant  to  perform  a duty  imposed  on  him, 
for  which  no  compensation  was  provided  by  the  Act. 

As  to  the  Attorney  General’s  not  appearing  on  the  occa- 
sion in  defence  of  the  State  law,  it  certainly  was  not  his  duty 
so  to  do,  until  called  upon  for  that  purpose.  If  any  person 
had  a right  to  make  a call  on  him  for  his  services  and  assist- 
ance, it  certainly  was  the  Sheriff.  Did  the  Sheriff  demand 
of  him  his  assistance  as  counsel?  I do  understand  not.  Then 
how  can  it  be  said,  that  the  State  officers  were  willing  to  let 


the  matter  sleep.  The  law,  it  is  true,  did  go  to  sleep,  and  it 
slept  for  the  same  reasons,  that  many  other  laws  upon  the 
the  same  subject  sleep.  They  sleep,  because  the  officers  (I 
mean  no  offence)  whose  duty  it  is  to  enforce  them,  neglect  so 
to  do.  As  to  Mr.  Holmes’  conducting  the  opposition  to  the 
discharge  of  the  prisoner,  the  Judge  neither  knew,  nor  could 
he  know,  that  he  appeared  otherwise,  than  as  he  himself  stat- 
ed in  Court.  The  South-Carolina  Association  was  not  before 
the  Court ; had  not  been  there  named  by  any  one,  and 
the  Judge  had  no  more  right,  in  his  written  opinion,  to  call 
Mr.  Holmes,  Solicitor  to  the  Association,  than  he  had  a right 
to  call  out  the  names  of  any  other  officer  of  that  respectable  So- 
ciety of  citizens.  Some  of  my  readers,  may  think,  that  I am 
noticing  a trifling  circumstance,  in  saying,  the  Judge  had  no 
right  to  call  names  in  Court,  of  persons  not  before  him,  in  any 
Of  the  proceedings.  But  they  will  cease  to  think  so,  when 
they  recollect,  that  the  sentiment  improperly  ascribed  by  the 
Judge,  toMr.HoLMES,  (as  will  be  shewn  hereafter)  may  with- 
out much  difficulty  be  put  upon  the  Association.  As  I regard 
this  Association  as  an  useful  body  of  men,  having  no  other 
views,  than  to  aid  the  execution  of  the  laws,  and,  as  my  ob- 
ject in  these  essays  is,  to  vindicate  my  country,  and  its  laws, 
and  any  of  the  institutions  connected  with  its  peace  and  hap- 
piness, I could  not  pass  unnoticed,  a circumstance,  which 
ingenuity  might  convert  into  a reflection  on  that  band  of  pa- 
triots and  of  gentlemen.  This  tribute  is  due  from  one,  who 
knows  personally  most  of  its  members,  and  would  gladly  be 
enlisted  under  their  banners. 

I come  now  to  the  sentiment  ascribed  by  the  Judge,  to  Mr. 
Holmes,  eo  nomine.  This  sentiment,  (in  the  concluding  pa- 
ragraph of  his  speech)  as  can  be  attested  by  many  who  heard 
it,  was  used  altogether  hypothetically.  After  drawing  a pic- 
ture of  the  calamities,  which  ultimately  awaited  our  State, 
should  she  be  deprived  of  the  right  of  prohibiting  free  persons 
of  color,  from  migrating  and  flocking  hither,  from  all  parts  of 
the  world ; after  shewing,  in  a philosophical  manner,  that 
the  destruction  of  this  species  of  property  was  inevitable,  and 
that  this  property  gave  strength  and  stability  to  the  State,  he 
concluded  his  speech,  by  remarking,  that  in  the  dreadful  hour 
of  peril  and  of  trial,  which  he  hoped  would  never  arrive,  the 
people  of  Carolina,  rather,  than  calmly  look  on,  and  see  their 


19 

iives  jeopardized,  their  houses  in  flames,  their  slaves  in  arms, 
and  their  very  existence  threatened,  would  see  the  pillars  of 
the  government  crumble  into  ruins-  This  was  the  exact  sen- 
timent delivered  by  this  young  man,  and  not  the  one  so  un- 
qualifiedly stated  by  the  Judge.  But  now  I put  it  to  my  fel- 
low-citizens, and  to  the  world,  to  tell  me,  in  what  portion  of 
the  habitable  globe,  in  which  civilization  and  refinement 
reign,  or  civil  liberty  Fears  her  head,  it  was  ever  required  of 
a Judge,  as  a part  of  his  duty,  to  seize  hold  of  a sentiment  ex- 
pressed by  Counsel,  irrelevant  to  the  point,  finally  decided, 
and  not  censured  at  the  moment,  and  to  make  it  the  subject 
of  a judicial  remark,  in  a written  opinion.  I protest,  my 
countrymen,  against  this,  as  contrary  to  all  rule  and  all  pro- 
priety ; as  unprecedented  in  practice,  as  it  is  unfair  in  prin- 
ciple : as  cruel  as  it  is  ungenerous.  If,  all  the  sentiments  of 
Counsel,  uttered  in  the  w'armth  of  the  imagination,  in  the  fer- 
vor of  declamation,  or  in  the  zeal  or  heat  of  discussion,  are  to 
be  stated  on  the  briefs,  and  remarked  on  (extra  judicially  too) 
in  the  written  opinion  of  Judges,  and  blazoned  to  the  world 
in  pamphlets,  where  is  the  Veteran  of  the  Bar,  whose  locks 
are  silvered  with  his  years  ; who  is  he,  into  whose  mind,  pru- 
dence and  discretion  have  poured  their  choicest  gifts,  that  can 
possibly  escape  censure  ? I protest  against  it,  as  infringing 
the  privileges  of  the  Bar ; as  limiting  the  range  of  the  imagi- 
nation ; as  cramping  genius,  and,  as  one  of  the  many  means, 
which  might  be  contrived  to  fetter  the  intellect  of  man.  Shall 
the  Barristers  of  the  Court,  after  the  manner  of  the  Locrians 
of  old,  address  the  Bench,  with  halters  around  their  necks  ? 
Or,  shall  the  walls  of  the  Federal  Court  Room,  be  hung  with 
the  tapestry,  and  the  pictures  of  the  chambers  of  the  Holy 
Inquisition,  that  with  racks  and  tortures  before  their  eyes, 
the  advocates  should  weigh  nicely,  as  in  a balance,  their 
words,  before  they  venture  to  utter  them  ? Where  is  the  In- 
quisition, out  of  Madrid,  that  can  equal  this  new  species  of 
Inquisition — the  Inquisition  of  a Judge’s  Charge  ? — Where 
are  the  racks  and  the  tortures,  however,  of  new  and  of  patent 
invention,  worse  to  men  of  sensibility  and  honor,  than  to 
have  then  sentiments,  often  incautiously  expressed,  circulat- 
ed in  pamphlets,  from  one  extreme  of  the  United  States  to 
the  other?  I aver,  that  the  like  of  this  has  not  occurred 


20 

within  the  hallowed  walls  of  any  Temple  of  Justice,  in  any 
land  of  freedom. 


NO.  5. 

It  must  have  been  seen,  that  my  object  in  noticing  Judge 
Johnson’s  opinion,  was  to  vindicate  the  State  and  the  com- 
munity from  the  aspersions  he  cast  against  both.  If  I have 
travelled  out  of  the  pamphlet,  or  have  touched  upon  topics 
not  arising  out  of  the  subject,  and  referred  to  by  the  Judge,  I 
shall  certainly  regret  it  for  my  own  sake.  I must  never  lose 
sight  of  the  respect  I owe  to  myself.  I am,  however,  not 
sensible  that  I have  trespassed  in  the  slightest  degree.  Cer- 
tainly, “ nothing  extenuated,  nor  set  down  aught  in  malice.” 
I desire  nothing  more,  than  that  my  readers  should  have 
his  pamphlet  in  their  hands,  whilst  they  read  these  essays, 
and  judge  for  themselves,  whether  I have  ascribed  to  him  any 
wrong  opinions  or  views  not  warranted  by  his  own  perform- 
ance. If  I have  at  any  time,  used  strong  language,  it  was 
because  the  occasion  as  strongly  demanded  it.  Shall  a pub- 
lication be  permitted  on  the  one  hand,  liable  from  the  very 
nature  of  its  subject,  to  be  misunderstood  by  one  class  of  our 
population  ; and  on  the  other  encouraging  by  opinions  un- 
necessarily expressed,  the  coloured  race  of  other  parts,  to 
persist  in  coming  here  contrary  to  our  laws,  that  they  might 
corrupt  our  slaves  ? Shall  the  circulation  of  sentiments  of 
this  cast  and  character,  be  tamely  acquiesced  in,  because  they 
come  from  the  extra-judicial  pen  of  Judge  Johnson  ? Shall 
the  sacred  mantle  of  office  cover  the  indiscretion  of  the  man, 
or  shall  station  protect  him  who  forgets  his  duties  to  the 
advocate,  in  breaking  down  those  laws  of  courtesy  which  bind 
the  Bar  to  the  Court  ? Palsied,  I say  be  my  heart,  and  pal- 
sied be  my  tongue,  when  the  one  shall  not  feel  at  this  time, 
luch  insults  to  my  country,  and  the  other  to  proclaim  her 
wrongs.  That  the  volunteer  opinion  of  Judge  Johnson,  may 
ind  tvill  produce  unhappy  effects,  is  not  a solitary  opinion  of 
nine.  Every^prerson  in  the  Court  room  disapproved  of  it, 
nd  there  was  almost  a simultaneous  wish  expressed  in  the 
abbies,  that  it  should  be  confined  to  the  place  where  it  was 


i 


21 

first  delivered.  The  very  circumstance  of  the  Editor  of  a 
Public  Gazette,  declining  its  insertion  in  its  columns,  ought 
to  have  put  the  Judge  to  the  inquiry,  whether  there  might 
not  be  some  ground  for  the  Editor’s  opinion,  that  it  was  im- 
proper for  public  inspection-  Most  men,  similarly  circum- 
stanced, and  at  the  same  time  entering  into  the  sympathies  of 
their  fellow  men,  after  the  occurrences  of  the  past  summer, 
would  have  been  thankful  for  such  a suggestion,  from  one, 
who,  from  his  habits  was  fit  to  judge,  and  who  could  have 
had  no  wrong  motive  for  his  advice.  The  Judge,  however, 
disregards  admonition,  and  his  opinion  is  with  the  world. 

In  the  opinion  given  by  him  on  the  merits  of  the  motion 
for  the  habeas  corpus , I most  sincerely  acquiesce.  1 his  I 
call  the  judical  opinion  of  the  Court,  and  it  is  entitled  to  my 
respect.  It  will  be  found  from  the  12th  to  the  15th  (both 
inclusive)  pages  of  the  pamphlet,  with  only  one  exception, 
and  that  is,  where  in  half  a line, the  unconstitutionality  of  the 
State  Act  is  declared.  With  this  exception,  and  with  the 
exception  also  of  the  two  first  pages,  which  simply  comprise  a 
statement  of  the  case,  there  is  not  a sentence,  or  a sentiment 
in  the  whole  pamphlet,  from  the  beginning  to  the  end,  which 
is  not  extraneous  and  irrelevant  to  any  point  finally  decided 
by  the  Court.  This  I call  the  extra  judicial  part  of  the 
opinion.  It  is  not  that  the  principal  portion  of  this  opinion, 
as  it  is  termed,  is  irrelevant,  but  it  is  offensive,  as  I trust,  I 
have  shewn  to  the  good  people  of  the  state.  The  senti- 
ments are  expressed,  as  one  would  give  them,  if  he  were 
soured  with  the  community  in  which  he  lived.  In  the  view 
of  the  Judge,  the  Legislature  acts  hastily  and  without  due 
consideration.  It  first  permits  itself  to  be  surprised  into  the 
passing  of  the  law,  and  when  it  is  passed,  then  in  the  mind 
of  his  Honor,  it  is  not  only  unconstitutional  and  void,  but  it  is 
also  absurd.  In  the  view  he  takes  of  the  law,  if  its  policy  be 
to  keep  foreign  persons  of  color  from  holding  oommunion 
with  our  slaves,  it  then  pursues  a course  inconsistent  with  its 
object  and  defeats  its  own  ends.  If  it  would  keep  out  dan- 
gerous characters,  then  says  he,  it  presents  the  finest  facili- 
ties in  the  world  for  those  characters  to  introduce  themselves 
into  the  very  situation,  in  which  they  would  enjoy  the  best 
opportunities  of  pursuing  their  designs.  If,  continues  he, 
it  would  have  wild  beasts  kept  from  us,  then  it  acts  so  as  to 


22 

turn  them  loose  into  our  streets.  If  it  would  keep  out  the 
plague,  then  it  inoculates  the  community  with  it.  If  the  in- 
cendiary, the  fire  brand  is  put  under  our  houses.  It  is  stu- 
diously/ calculated  he  thinks,  to  hurry  through  its  own  exe- 
cution, so  as  to  leave  the  objects  of  it  remediless.  It  is  un- 
just— it  is  incongruous.  These  are  the  Judge’s  ideas,  nay 
his  words.  It  again  makes  slaves  of  the  fiiendly  subjects  of 
Morocco  and  Algiers,  and  of  the  fine  Nantucket  Indian 
Seamen,  sdme  of  the  best  he  says,  in  our  service,  without  a 
chance  of  redemption.  Aye,  and  of  poor  shipwrecked  mari- 
ners too  ! All  these,  no  matter  how  willing  they  may  be  to 
leave  us,  may  be  made  slaves  in  the  land  of  South  Caroli- 
na, if  a captain  by  his  avarice,  or  his  caprice,  should  chuse  it. 
These  are  the  Judge’s  extraordinary  views,  in  this  most  ex- 
traordinary performance,  called  an  opinion  from  the  Bench. 
What  series  of  circumstances,  what  combination  of  causes, 
could  bring  about  in  the  mind  of  any  one  citizen,  such  un- 
happy, such  oblique  and  such  distorted  views  of  our  legisla- 
tion and  proceedings,  it  must  be  left  for  the  community  to 
judge.  Had  it  been  so,  that  his  Honor  in  any  case  which 
might  have  come  before  him,  was  so  situated,  as  to  give  an 
opinion  against  his  own  feelings,  in  which  his  countrymen 
saw  their  hopes  disappointed,  and  their  prospects  darkened, 
who  would  have  blamed  him,  for  the  honest  and  conscienti- 
ous discharge  of  his  high  and  sacred  trust  ? But,  when  duty 
does  not  demand  the  expression  of  opinions,  which,  in  their 
tendency,  may  be  destructive  to  the  interests  of the  State,  who 
can  excuse  him  ? If  in  his  strange  conceit,  such  a matter  as  a 
State  taking  up  a few  persons  of  color,  could  produce  colli- 
sion between  this  State  and  the  general  government,  or  be- 
tween the  general  government,  and  a foreign  power,  was  it 
for  him  to  interfere  ? If  the  British  Consul  and  the  Northern 
Captains,  had  complaints  to  make,  as  he  states,  and  he  could 
give  them  no  redress,  what  more  had  he  to  do  with  the  busi- 
ness ? Is  he  to  counsel  them  ? Is  he  to  assure  them  “ that 
they  should  be  no  more  molested.”  Could  he  suppose,  that 
his  dictum,  or  the  influence  of  his  opinion,  could  put  an  end 
to  the  operation  of  a State  law  ? But  1 he  knows  the  unfa- 
vourable feeling  which  the  Act  was  calculated  to  excite 
abroad,’  then,  why  not  at  the  same  time,  give  some  thought 


23 

to  the  situation  and  feelings  of  the  people  at  home,  amongst 
whom  he  lived  ? If  he  would  step  out  of  the  line  of  his  du- 
ty, to  do  an  act  of  kindness,  why  not  have  had  his  eye  a little 
to  the  Citizens  of  Charleston,  as  well  as  interest  himself,  for 
the  Northern  Captains,  who  are  acting  for  the  colored  people 
of  the  North.  If  he  would  interpose  his  advice  at  all,  why  not 
have  said  to  these  Captains,  as  he  might  have  said  with  pro- 
priety and  with  great  truth,  that  they  carry  thousands  of  South- 
ern passengers  from  this  port ; that  they  earn  their  bread  by 
the  custom  and  the  trade  of  the  South ; that  the  facility  af- 
forded for  mischief  by  the  increasing  practice  of  employing 
colored  cooks,  stewards  and  mariners,  was,  in  this  community, 
a growing  evil,  and  a just  cause  of  considerable  alarm,*  and  as 
the  inconvenience  to  them,  in  dispensing  with  their  blacks,  was 
but  trifling,  compared  to  the  danger  to  us,  in  bringing  them 
here,  they  ought  to  have  some  little  regard  to  the  feelings  of 
the  people  with  whom  they  traded,  and  not  press  the  matter 
before  the  State  Court.  Understand  me,  I do  not  say,  he 
ought  to  have  said,  thus  much,  but  that  if  he  did  interfere  or 
give  his  private  opinion  at  all , better  to  have  spoken  as  a 
Carolinian,  than  to  take  the  interest  he  did,  by  directing  Mr. 
Gadsden,  the  District  Attorney  of  the  United  States,  to 
make  applications  to  the  State  Authorities,  as  if  it  were  a 
matter  of  any  great  consequence,  whether  the  blacks  of  New- 
York  or  Philadelphia,  (whose  hostile  intentions  must  be  bet- 
ter known  there  than  here,)  were  lodged  in  jail,  till  the  ves- 
sels which  brought  them  in  should  be  ready  to  sail.  Would 
any  of  the  Judges  of  the  King’s  Bench  in  England,  take  the 
same  trouble,  or  feel  the  same  interest,  for  a bona  f.de  white 
American  Citizen,  who  having  a right  to  ingress  into  Great 
Britain  by  the  Treaty  with  that  power,  should  be  ordered 
oft',  by  that  government,  under  the  Alien  Act,  lately  passed 
by  Parliament. — I should  say  no. 

Every  thing  which  has  happened  for  the  last  twelve 
months,  ought  to  have  demanded  of  the  Judge,  to  have  en- 
tered so  far  into  the  general  sympathy  and  public  feeling,  as  to 

*The  splendid  Liverpool  Line  ship  Canada,  on  her  arrival  from 
Liverpool  discharged  her  crew  in  .New  York,  and  when  she  arrived 
here  some  weeks  ago,  her  crew  before  the  mast  was  composed  entire- 
ly of  blacks,  shipped  in  New-York  for  this  voyage. 


24 

have  directed  his  unofficial  advice,  (if  he  would  give  it,)  tv 
the  end,  which  he,  as  well  as  the  rest  of  this  community,  ought 
ever  to  be  desirous  to  attain  ; namely,  the  exclusion  of  these 
characters,  who  furnish  such  an  important  means  of  commu- 
nicating to  the  domestics  of  the  South,  the  sentiments  and 
opinions,  and  horrible  schemes  of  their  own  color  of  the 
North.  The  author  of  this  pamphlet,  was  born  and  has  liv- 
ed among  us.  He  has  seen  attempts  frustrated,  which  had 
they  succeeded,  to  any  extent,  would  have  made  this  land,  the 
scene  of  desolation  and  woe.  He  has  seen  thirty-five  hu- 
man beings  atone  for  their  diabolical  crimes,  by  the  death  of 
the  gallows.  He  has  seen  them  tried  by  some  of  the  first 
men  in  the  state,  and  distinguished  for  their  probity,  their 
honor,  and  their  good  sense.  He  knows  their  sentence  to  be 
approved  of  by  every  man,  woman  and  child  in  the  country. 
If  he  has  heard  complaints,  he  has  heard  none,  but  there  has 
been  too  much  forbearance,  and  that  the  steps  of  justice 
were  too  sluggish.  The  sensibility  of  the  city,  he  has  seen 
extended  more  or  less,  over  the  state.  He  knows  the  state, 
and  the  progress  of  opinions  in  other  countries  on  this  sub- 
ject. He  there  sees  societies,  and  plans,  and  projects  a-foot, 
striking  as  manifestly  at  the  vital  interests  of  the  States  of  the 
South,  as  that  the  sparks  fly  upwards.  He  sees  a false  and 
affected  tone  of  philanthropy,  which,  if  spread  over  the  vast 
regions  anticipated  by  their  professors,  would  overwhelm  the 
land  of  his  fathers.  He  can  look  no  where,  that  he  does  not 
see  clouds  gathering  into  storms,  and  storms  threatening  to 
burst  upon  nations.  He  sees  the  colonial  interests  of  the 
British  Empire,  about  to  be  immolated  on  the  altars  of  folly, 
and  every  branch  of  trade  connected  therewith,  about  to  be 
surrendered  to  the  fanaticism  of  a thousand  Wilberforces  — 
He  hears  the  petitions  of  the  colonies.  They  address  their 
cruel  and  unnatural  parent,  to  spare , and  not  like  Saturn  to 
destroy  her  own  children.  Let  him  go  over  the  sections  of 
this  confederacy.  He  finds  the  self  same  spirit,  under  other 
names,  and  prompted  by  other  motives,  stalking  abroad  as  a 
pestilence.  All  the  engines,  and  all  the  means  and  ma- 
chines, which  talent,  fanaticism,  false  charity,  fashionable 
humanity,  or  jealousy,  or  folly,  can  invent,  are  in  dreadful 
operation,  and  array  against  the  State,  which  gave  him  birth. 
And  when  the  state  would  look  out  for  a little  shelter,  from 


25 

the  impending  gust,  in  the  means  which  God  and  nature  has 
given  every  sovereign  state  and  every  individual  to  preserve 
themselves,  the  Judge  alone,  as  if  he  were  on  a hill,  would 
act  and  interfere  as  if  there  were  no  cause  for  alarm  : 

“ He  would  bestride  our  narrow  community. 

Like  a Colossus  j and  we  petty  men, 

Must  peep  about,  under  bis  huge  legs, 

To  find  ourselves  dishonorable  graves.’' 

Our  Legislature  have  no  deliberation,  or  reflection,  for  they 
pass  absurd  laws.  Their  means  defeat  their  ends. ' And  as 
to  the  necessity  for  all  this  exhibition  of  legislation  and  zeal'’ 
for  the  year  past,  the  author  of  this  pamphlet  has  his  private, 
opinion,  but  lie  will  only  express  it  to  his  friends. 

“ Xay ; yet  there’s  more  in  this  ; 
l pray  thee,  speak  to  me.  as  to  thy  thinkings, 

As  thou  dost  ruminate,  and  give  thy  wors  t of  thoughts 
The  worst  of  words.’’ 

If  prudence  be  a virtue  in  domestic  life,  it  should  never  be 
neglected  by  a person  in  authority.  Every  sentiment  ex- 
pressed by  a great  man,  produces  good  or  evil  consequences ; 
for  after  all  our  boasted  independence,  we  rely  very  much 
upon  the  opinions  of  others.  If  the  chief  magistrate  of  these 
United  States,  should  express  any  opinion,  upon  a subject  in 
its  nature  calculated  to  excite  the  passions  of  men,  however 
unofficial  may  be  the  expression  of  that  opinion,  it  must  and 
it  will  cause  great  excitement.  It  is  the  part,  therefore,  of 
wisdom,  never  to  proceed  a single  step  beyond  what  may  be 
required  by  the  immediate  case  under  consideration.  But 
of  all  men,  he  who  is  to  dispense  justice,  should  be  the  last  to 
advance  an  opinion  upon  national,  much  less,  international 
law,  when  that  opinion  is  not  necessarily  called  for  by  the 
subject  in  dispute.  The  decision  now  under  review,  is  ex- 
pressly in  violation  of  prudence.  It  has  covered  a ground 
as  extensive  as  the  imagination  of  the  Judge.  It  brings  be- 
fore the  public  no  less  personages  than  the  British  Minister 
at  Washington,  the  honorable  the  Secretary  of  State,  and  a 
distinguished  member  of  Congress,  from  South  Carolina.— 
3 


26 

It  arraigns  the  w isdom  of  the  legislative  body,  and  is  calcula- 
ted to  rouse  the  indignation  of  the  Northern  States,  by  a se- 
ries of  analogies,  as  revolting  to  our  own  feelings,  as  to  those 
of  the  people  of  Massachusetts,  or  Connecticut.  It  glances 
from  the  public  officers  to  a private  Association,  and  from 
the  Attorney  General  of  the  State,  to  the  Solicitor  of  the 
Association.  Every  consideration,  which  would  have  sug- 
gested a decision,  as  limited  as  the  circumstances  of  the  case 
would  admit,  has  been  by  the  Judge  entirely  neglected. — 
A motion  is  made  for  a habeas  corpus,  &c.  He  decides  that 
he  has  no  power  lo  grant  it,  and,  consequently,  whether  the 
law  of  1822,  be.  or  be  not  constitutional,  was  not  a subject 
for  the  decision  of  the  Court.  In  deciding,  therefore,  upon 
this  question,  his  honor  kept  not  within  the  line  of  prudence, 
but  went  beyond  the  necessity  of  the  case.  But,  even  if  the 
constitutionality  of  the  law  was  the  subject  before  the  Court, 
where  was  the  necessity  of  introducing  Mr.  Adams  to  the 
view  of  the  public.  Could  Mr.  Adams’  incautious  pledge  td 
Mr.  Canning,  the  British  Minister,  influence  the  decision  of 
a grave  question  ? or  was  it  necessary  for  Judge  Johnson  to 
justify  to  Carolina,  the  ways  of  the  honorable  Secretary  ? It 
must  have  been  for  one  of  these  two  purposes,  or  it  was  idle. 
But  is  the  opinion  of  those  in  power  to  affect  a constitutional 
decision,  or  is  Mr.  Adams  so  weak  as  to  need  Judge  Johnson’s 
assistance,  in  regulating  his  official  conduct?  Is  it  not  appa- 
rent, that  every  thing  said  in  this  opinion,  relative  to  the 
'•orrespondence  between  Mr.  Adams  and  the  British  Minis- 
ter, and  between  Mr.  Adams  and  an  honorable  Member  of 
Congress,  is  altogether  irrevelant,  and  highly  extra  judical  ? 
Can  any  valuable  end  be  accomplished,  by  such  extraneous 
matter  being  introduced  into  a judicial  decision  ; and  must  it 
not  be  productive  of  unhappy  irritation,  both  here  and  abroad  ? 
Even  allowing  the  law  to  be  unconstitutional,  would  it  not  be 
the  part  of  a wise  man  to  calm,  rather  than  to  increase  the 
excitement,  which  he  thinks  necessarily  arises  from  the  exe- 
cution of  such  a law  ? If  one  State  deems  a certain  act  com- 
mitted by  another  State,  destructive  of  its  safety,  would  not  a 
man  possessed  of  influence,  be  well  employed,  if  he  takes  up 
the  subject  at  all,  in  persuading  the  first  State,  to  abstain 
from  the  committing  of  that  act,  although  it  would  be  consti- 
tutional ; and  would  it  not  be  extremely  unsound  and  unpa- 


27 

triotic,  to  encourage  a Northern  State,  in  doing  that,  which  is 
of  little  importance  to  her,  but  of  deep  solicitude,  to  us  in 
the  South?  There  can  be  but  one  opinion,  I should  conceive 
on  this  subject. 


NO.  6. 


As  the  Judge  begins  to  be  angry,  and  in  a publication 
just  put  forth  under  his  signature,  would  have  the  communi- 
ty to  regard  him  as  a noble  stag  pursued  for  some  time  past 
by  blood  hounds,  upon  whom  he  must  now  and  then  turn  in 
the  pursuit,  I think  it  due  to  myself  to  state,  in  this  place, 
that  I am  perfectly  unconscious  of  any  wrong  motive  to- 
wards him.  My  displeasure  arises  from  the  indiscretion  of 
his  publishing  or  causing  to  be  published,  his  opinion  on  u 
subject,  calculated  to  produce  excitement,  and  containing 
sentiments  injurious  in  their  tendency  to  the  public  weal. — 
I am  now  tempted  to  go  for  the  first  time  from  tire  pam- 
phlet; but  when  my  readers  shall  perceive,  that  I do  it 
for  no  other  purpose,  than  to  bring  before  them,  the  Judge’s 
own  words , and  the  sanction  of  his  own  authority  for  much 
that  I have  said,  I trust  I will  be  readily  excused  by  all. — 
Though  I travel  out  of  the  pamphlet,  I certainly  do  imt  de- 
part from  the  subject.  The  descision  of  Judge  Johnson,  in 
the  case  of  Elkison,  is  a nisi  prius  decision.  Lest  some 
of  my  readers,  should  not  know  the  meaning  of  the  term,  it 
behoves  me  to  say,  that  by  a nisi  prius  report  or  decision, 
is  meant  nothing  more  than  a decision  of  a single  Judge. 

In  the  City  Gazette  of  January  18th,  1822,  is  published 
Judge  Johnson’s  opinion  in  the  Amanda , and  George  Tim- 
mons, owner,  and  Edward  G.  Mann,  master,  vs.  J.  & J. 
Owens  Johnson,  et.  al.  In  the  course  of  the  argument,  in 
that  case,  before  his  honor,  the  case  of  De  Lovio  and  Boit, 
reported  in  2d  Gallison,  was  much  commented  on.  That 
report  was  a nisi  prius  one,  and  Judge  Johnson,  in  noticing 
it,  makes  the  following  remarks — “ I think  it  a public  mis- 
“ fortune,  that  they,  (that  is  nisi  prius  decisions)  are  ever 
Ci  published ; for  they  commit  a Judge  to  posterity,  without 
::  an  opportunity  of  correcting  his  errors, — add  to  the  enor- 


“ mous  bulk  and  expense  of  a Law  Library — often  make 
u business  for  our  Courts,  which  never  would  have  originat- 
“ ed  otherwise — and  finally,  give  a bias  to  legal  opinions, 
“ which  ought  to  be  received  exclusively  from  tribunals  of 
“ the  last  resort.”  If  ever  discretion  and  good  sense  was 
contained  in  a few  remarks,  those  I have  here  quoted,  do  cer- 
tainly contain  it.  On  a Judge’s  opinion  are  frequently  sus- 
pended, the  fortune  and  life  of  an  individual ; and,  it  is  not 
too  much  to  assert,  “ the  destinies  of  a whole  people.”  “ To 
put  forth,  then,  an  opinion,  which  may  contain  errors  fatal 
to  our  security,  without  an  opportunity  of  correcting  those 
errors,  is,  to  say  the  least  of  it,  highly  injudicious.  To  make 
“ business  for  the  Courts  which  toould  never  have  originat- 
ed otherwise ,”  is  to  create  one  of  the  greatest  evils,  which 
can  afflict  a people.  “ To  give  a bias  to  legal  opinions, 
which  ought  to  be  received  exclusively  from  tribunals  of  the 
last  resort,”  is  acting  against  the  very  genius  and  spirit  of 
that  constitution,  which  the  Judge  is  sworn  to  defend,  inas- 
much as  that  constitution,  has  created  a trihunal  of  the  last 
resort , to  prevent  the  very  mischief  complained  of.  How  is 
it  possible  for  any  man,  to  reconcile  the  remarks  of  Judge 
Johnson,  made  only  eighteen  months  ago,  with  his  conduct 
on  the  present  occasion  ? Are  these  remarks  to  be  regar- 
ded only  as  just  when  applied  to  a published  decision  of  so 
distinguished  a Lawyer  and  Judge,  as  Judge  Story  ? or 
does  Judge  Johnson  think  his  opinion  so  infallible  that  no 
errors  can  possibly  be  transmitted  to  posterity,  by  the  publi- 
cation of  it?  It  may  perhaps  be  said,  that  there  is  no  ap- 
prehension of  this  decision,  going  down  to  posterity,  or  of  its 
being  added  to  our  already  enormous  law  libraries,  which 
perhaps  is  true ; still  however,  it  may  have  the  effect  of  ma- 
king “ business  for  our  Courts  which  would  never  have  ori- 
ginated otherwise.”  The  Constitutional  Court  of  South 
Carolina,  having  refused  to  declare  the  Law  unconstitution- 
al, it  was  deemed  unnecessary  by  captains  of  vessels,  or  their 
advisers,  to  make  any  further  appeal  to  the  State  Tribunals, 
and  as  the  Federal  Circuit  Court  had  no  jurisdiction  in  cases 
arising  under  it,  they  would  shortly  have  been  compelled  to 
employ  white  men  only  on  board  such  vessels. as  traded  to 
this  port,  and  thus  every  benefit  anticipated  by  the  framers 
of  the  law  of  1822,  would  have  been  realized.  But  since 


/ 


29 

Fudge  Johnson  has  thought  proper  to  publish  to  the  world, 
his  opinion,  on  the  constitutionality  of  this  law,  Captains  of 
vessels  are  thereby  encouraged,  to  bring  into  our  ports,  per- 
sons excluded  by  its  provisions,  and  thus  “ make  business ” 
for  our  State  Courts,  with  a view  of  carrying  up  their  cases, 
as  they  are  told  they  can,  to  the  Supreme  Court  of  the  Uni- 
ted States.  Here  then  we  perceive,  that  the  very  consequen- 
ces, so  much  deprecated  by  the  Judge  when  alluding  to  the 
nisi  prius  decision  of  a Brother  Judge,  are  likely  to  result 
from  his  own  published  decision.  If  Judge  Johnson 
could  so  clearly  discern  the  evils  flowing  from  the  publica- 
of  a nisi  prius  decision  by  Judge  Story,  what,  I ask,  could 
have  induced  him  to  publish,  or  cause  to  be  published,  his 
own  decision,  which  was  also  at  nisi  prius  ; especially  as  he 
says  in  the  case  of  the  Amanda — “ I have  observed  in  com- 
“ mon  with  my  own  decisions,  that  those  of  my  brethren  on 
Circuit,  are  not  authority.”  Now,  if  ‘ not  authority,’  why 
^publish  it  ? It  could  not  surely  be  1 to  give  a bias  to  legal 
opinion  for  I owe  it  to  our  State  Judges  to  say,  that  they 
are  not  very  likely  to  be  biassed  by  any  opinion  of  Judge 
Johnson,  as  to  the  construction  of  a law  which  is  to  guard 
against  insurrections.  Here  then,  is  a tissue  of  inconsisten- 
cies in  the  conduct  of  Judge  Johnson,  totally  irreconcileable, 
upon  any  principles  I am  acquainted  with,  though  I candid- 
ly confess,  I am  not  very  conversant  with  the  principles 
which  prevail  in  the  Federal  Court.  In  my  former  num- 
bers, l remarked  that  there  was  no  necessity  for  Judge  John- 
son’s saying  a word  on  the  constitutionality  of  the  law,  be- 
cause he  had  other  grounds  fully  sufficient  to  decide  upon.— 
In  truth,  he  did  not  possess  the  right  to  decide  on  its  consti- 
tutionality, inasmuch  as  it  did  not,  and  could  not  affect  the 
question  before  him.  Can  any  good  reason  be  assigned 
then,  why  he  should  have  touched  upon  a question  so  irrita- 
ting— so  calculated  to  inflame — and  so  likely  to  produce  a 
misunderstanding  between  the  Northern  and  Southern  States  ? 
Will  it  be  said  that  he  has  done  no  more  in  this  case,  than 
he  does  in  every  case,  and  this  excuse,  I know  has  been  made 
for  him  by  his  friends. — If  this  had  been  his  constant  prac- 
tice, there  were  certainly  strong  reasons  for  his  deviating  from 
it  in  this  instance.  But  so  far  from  it  being  his  constant 
practice,  he  invariably  avoids  it,  at  least  if  expressions  made 
3* 


50 

use  of  by  him  are  to  carry  any  authority  with  them.  In  the 
conclusion  of  his  opinion,  in  the  case  of  the  Amanda , he 
makes  the  following  observations  : — “ There  are  other  ques- 
tions of  great  commercial  importance  in  this  case — but  I 
“ shall  adhere  to  my  constant  practice  of  never  seeking  for 
“more  than  one  sufficient  ground  to  decide  upon.’’  How 
comes  it  then,  that  after  decreeing  upon  the  very  ground 
which  was  sufficient,  he  proceeds  to  consider  a ground  which 
he  acknowledges  to  be  insufficient  ? Is  it  not  ‘ passing 
strange,  that  upon  the  most  delicate  subject  which  can  be 
presented  to  a Court,  the  Judge  should  not  only  comment 
upon  a ground  irrelevant  and  insufficient,  but  even  depart 
from  a resolution  to  which  he  publicly  promised  to  adhere , 
viz.  the  ‘ constant  practice  of  never  seeking  for  more  than 
one  sufficient  ground  to  decide  on  V Was  there  nothing 
due  to  the  people  of  Charleston,  among  whom  Judge  John- 
son was  born,  and  to  whom  he  is  indebted  for  many  honors  ? 
Would  it  not  at  least  have  been  respectful  to  the  people  of 
South-Carolina,  and  to  its  Legislature,  to  have  passed  sub 
silentio  a question,  which  was  not  necessary  to  the  perform- 
ance of  his  duty,  but  which  must  necessarily  inflict  a severe 
wound  upon  their  sensibilities  ? Or  are  we  to  understand, 
that  when  a citizen  becomes  a servant  of  the  General 
Government,  he  is  to  disregard  the  views,  opinions  and 
feelings  of  those  among  whom  he  was  bred,  and  from 
whose  early  notice  of  him,  he  perhaps  derives  the  ex- 
alted honor  of  being  a Judge  of  the  Supreme  Court  of  the 
United  States  ? 


NO.  7. 


On  that  part  of  Judge  Johnson’s  opinion,  in  which  he 
condemns  the  State  Act,  as  unconstitutional  and  void ; I have 
hitherto  said  nothing.  It  was  not  my  intention,  when  I ffie- 
gan  these  essays,  to  touch  this  question.  As  the  Act,  how- 
ever, has  been  much  talked  of,  and,  as  many  of  our  citizens 
might  naturally  fall  into  the  opinion,  that  it  is  a nullity,  mere- 
ly, because  a Judge  of  the  United  States’  Court  says  so,  and 
other  good  citizens  know  not  what  to-  think,  I shall  endeavor 


31 

to  remove  some  doubts  which  I have  heard  expressed  by  my 
friends.  It  is  not  to  be  expected,  that  in  the  columns  of  a 
public  journal,  and  with  the  little  time  allowed,  from  day  to 
day,  to  prepare  for  the  press,  that  I should  give  a systematic, 
or  even  the  strongest  view,  of  which  the  subject  is  suscepti- 
ble. All  that  I propose  to  do  in  the  numbers  which  are  to 
follow,  is  to  give  some  ideas  on  the  subject,  which,  if  they  do 
not  wholly  satisfy  my  fellow-citizens,  will,  at  any  rate,  induce 
some  of  them  to  pause,  before  they  believe,  that  in  passing 
this  Act,  the  State  has  been  unmindful  of  her  obligations  to 
the  General  Government,  or  has  acted  upon  any  other  con- 
viction than  that  the  Act  was  constitutional  as  well  as  expe- 
dient. That  it  will  stand  the  test  if  ever  the  great  question 
should  come  before  the  tribunal  of  the  last  resort,  is  my 
honest  conviction,  as  it  is  my  sincere  hope. 

The  Judge,  in  giving  his  extra-judicial  opinion,  takes  two 
positions.  His  first  is,  that  the  right  of  Congress  to  regulate 
commerce  with  foreign  nations,  is  a paramount  and  exclu- 
sive right.  This  general  position,  if  it  means  that  the  regu- 
lation of  commerce  belongs  exclusively  to  Congress,  and  not 
to  the  States,  has  my  unqualified  assent.  I yield  to  the 
Judge  that  this  law  could  not  be  passed  by  the  State  in  the 
exercise  of  a concurrent  right.  The  law  in  my  view  is 
wholly  indefensible  on  such  a ground;  and  I now  regret  that 
such  a ground  ever  was  taken.  The  words  of  the  grant  of 
this  power  from  the  States  to  Congress  do  certainly  “ sweep 
away  the  whole  subject,  and  leave  the  States  nothing  to  act 
upon.”  So  far  we  do  not  differ. 

The  Judge’s  second  general  and  broad  position,  is,  that 
unless  it  can  be  shown  that  the  State  possesses  a power 
paramount  to  the  treaty-making  power  of  the  United  States, 
expressly  declared  to  be  a part  of  the  supreme  legislative 
power  of  the  land,  the  State  law  cannot  be  sustained.  I 
here  dissent.  I think  the  case  of  Henry  Elkison  is  in- 
dependent of  such  a position,  as  not  coming  within  the  spirit 
or  object  of  the  treaty,  or  within  the  contemplation  of  those 
who  negociated  it,  as  I hope  to  shew.  But  I do  contend, 
that  as  to  the  prohibition  of  persons  of  color  from  entering 
its  limits,  whether  bond  or  free,  this  State  does  possess  a 
power,  which  is  paramount  to  any  treaty-making  power 
whatever,  and  that  a treaty  in  which  the  State  is  deprived  of 


32 

the  exercise  of  this  right,  expressly  or  impliedly,  is  unconstrk 
tutional  and  void. 

A treaty,  made  under  the  authority  of  the  United  States,  is 
declared  by  the  constitution  to  be  the  supreme  law  of  the. 
land. — Hence  the  idea,  in  many  minds,  of  the  omnipotence 
of  a treaty.  But  this  is  a great  error;  for  all  the  laws  of 
Congress  are  equally  the  supreme  law  of  the  land.  The 
same  clause  in  the  constitution  which  gives  supremacy  to  a 
treaty,  at  the  same  time  confers  it  on  the  constitution  and  on 
every  act  of  Congress.  But  before  either  a treaty  or  a law 
can  be  acknowledged  as  supreme,  it  must  conform,  as  I shall 
shew,  to  the  constitution.  The  words  are — “ The  constitu- 
tion and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof ; and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land,  and  the  Judges  in  every  State 
shall  be  bound  thereby.”  A treaty  then,  by  being  called 
supreme  cannot  violate  the  constitution,  nor  can  it  stand  upon 
a better  footing  than  an  act  of  Congress;  for,  in  the  article 
just  cited,  the  constitution  itself  is  frst  declared  supreme,  as 
well  as  every  act  of  Congress  made  in  conformity  to  its  pro- 
visions. The  only  difference  between  an  act  of  Congress 
and  a treat)7,  which  lean  perceive  is,  that  the  one  maybe 
repealed  by  the  body  which  enacted  it,  whereas  the  other  is 
not  to  be  got  rid  of  without  collision  with  a foreign  power. 
But  I insist  upon  it,  that  a treaty  as  well  as  a law  of  Con- 
gress, before  it  can  have  validity  to  bind  the  States,  must  be 
within  the  constitution. 

To  give  any  other  construction  to  this  article  in  the  con- 
stitution, would  be  to  give  the  President  and  Senate,  who 
constitute  the  treaty-making  power,  a right  to  do  what  they 
please,  or  to  bind  the  States  in  all  cases  whatsoever.  I 
should  apprehend  that  no  reasonable  man  would  contend  for 
such  a construction  as  this.  1 will  illustrate  my  position  : — 
Suppose,  in  a treaty  to  be  made  by  the  President  and  Senate, 
the  United  States  be  pledged  to  an  alliance  offensive  and  de- 
fensive with  France.  Such  a treaty  would  be  ipso  facto 
void.  Why  ? Because  it  would  give  the  President  and  Se- 
nate a power  to  place  the  United  States  in  a state  of  war , 
which  power,  by  the  constitution,  is  expressly  and  exclusively 
vested  in  Congress*  Suppose  again,  a treaty  be  made  with 


U'3 

Great  Britain,  in  which  it  should  be  stipulated,  that  for  cer- 
tain commercial  advantages  on  our  part,  all  her  subjects, 
after  a certain  residence,  should  be  entitled  to  all  the  immu- 
nities of  native  citizens.  Such  a treaty  would  be  void,  be- 
cause Congress  alone  can  naturalize  foreigners.  Let  us  take 
now  a case  as  to  the  regulation  of  commerce,  which  so  pro- 
perly belongs  to  the  treaty-making  power.  Suppose  that  in 
a treaty,  purel}'  commercial,  in  order  to  give  the  people  of 
one  portion  of  the  Union  advantages  over  those  in  another, 
a treaty  shall  be  made  with  England,  giving  her  subjects  the 
right  to  import  goods  into  some  ports,  upon  trifling  or  no 
duties,  but  in  others  to  be  subject  to  very  high  or  prohibitory 
duties,  would  not  this  treaty  be  unconstitutional  and  void, 
under  that  article  of  the  constitution  which  says  that  “no 
preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue,  to  the  ports  of  one  State  over  those  of  another” — 
and  as  also  infringing  that  other  article  which  says  that  “ im- 
posts shall  be  uniform  throughout  the  United  States?” 

These  are  cases  in  which  treaties  would  be  void,  as  in- 
fringing express  articles  or  provisions  in  the  constitution. 
But  there  might  be  stipulations  in  treaties  which  would  be 
void,  as  interfering  with  the  numerous  undefined  powers  re- 
served to  the  States,  such  as  a stipulation  that  a foreigner 
should  carry  on  his  trade  free  from  all  state-taxes,  or  that  he 
should  be  exempt  from  militia  or  patrol  duty,  or  that  the  es- 
tate of  an  intestate  should  be  distributed  according  to  the 
laws  of  the  nation  to  which  he  belonged,  and  different  from 
the  law  of  the  State  in  which  he  died,  or  that  the  vessels  of 
any  nation  shall  not  be  subject  to  the  vexation  of  quarantine 
laws,  and  so  on.  If  it  were  necessary  to  push  examples 
further,  many  might  be  the  cases  (and  some  not  improbable) 
in  which  a treaty  make  by  the  President  and  Senate  would 
be  void.  Then  I ask,  as  1 trust  I have  a right  to  do,  from 
what  has  been  said,  what  becomes  of  this  high  sounding  attri- 
bute, in  the  treaty-making  power. that  a treaty  is  thesupreme 
law  of  the  land,  and  that  the  Judges  in  every  State  must  be 
bound  by  it,  if  it  only  be  made  under  the  authority  of  the 
General  Government?  What  becomes  of  this  omnipotence 
of  a treaty,  so  much  talked  of?  I have  shewn  many  cases  in 
which  confessedly  treaties  would  be  void.  A treaty,  then,  at 
last,  as  to  its  validity,  is  no  more  than  an  act  of  Congress. 


34 

Its  validity  depends  upon  its  constitutionality.  It  must  vot 
interfere,  either  with  the  powers,  expressly  delegated  by  the 
States  to  other  departments  in  the  government,  or  with  those 
which  are,  by  the  constitution,  reserved  to  the  States  respec- 
tively. If  it  does,  such  a treaty  in  either  case,  is  ipso  facto 
void,  and  the  States  are  no  more  bound  by  it  than  they  can 
be  bound  by  an  act  of  the  British  Parliament. 


no.  s. 

I am  fully  aware,  that  it  may  be  said,  that,  if  a treaty  be 
not  regarded  as  paramount,  and  any  state  should  refuse  to  com- 
ply with  its  stipulations,  that  it  might  furnish,  as  the  Judge 
thinks,  a ground  of  war  between  a foreign  Prince,  and  the  Go- 
vernment of  the  United  States.  I am  also  apprised  of  the  fear 
entertained  by  many  good  people,  that  no  Prince  or  State, 
would  ever  enter  into  a convention  with  a government,  pro- 
fessing itself  Sovereign  and  Supreme,  whose  engagements 
are  liable  to  be  frustrated  by  one  of  the  members  of  the  con- 
federacy, and  thus,  to  make  the  Government  of  the  United 
States,  like  the  old  confederation,  a rope  of  sand.  The  answer 
to  these  objections,  I conceive  to  be  very  plain  and  easy,  and 
it  is  this : if  the  General  Government,  which  is  a government 
acting  under  delegated  powers,  expressly  defined,  and  under 
certain  restrictions,  and  as  such  is  known,  or  ought  to  be 
Jcnoivn,  to  every  foreign  Prince,  or  Potentate,  thinks  proper, 
in  a treaty  with  such  Prince,  to  enter  into  obligations,  which 
are  contrary  to  its  high  duties  to  the  States,  or  to  its  obliga- 
tions to  the  States,  previously  contracted,  the  fault  and  the 
folly  is  its  own;  and  the  matter  must  be  settled  between 
the  two  Governments,  in  the  best  way  they  can.  It  is  no 
more,  than  the  common  case  of  an  individual,  treating  with 
another  individual,  under  powers,  which  are  afterwards  dis- 
covered to  be  insufficient.  Governments  often  get  into  diffi- 
culties of  various  kinds,  and  there  have  been  instances,  in 
which  differences  and  serious  collisions  too,  have  arisen  be- 
tween one  government  and  another,  owing  to  carelessness  and 
oversight  in  their  treaties.  But  it  would  be  monstrous  to  say, 
that,  because-  the  genera!  government,  in  a treaty,  has  sur- 


35 

rendered  a right  of  vital  importance,  belonging  to  any  of  the 
States,  that  the  particular  State  so  injured,  should,  from  re- 
spect to  the  Government,  or  from  fear  of  involving  it  in  colli- 
sion and  war,  produced  by  its  own  indiscretion  and  folly,  ab- 
stain from  exercising  a right,  essential  to  its  domestic  tran- 
quillity or  existence.  I will  throw  out  an  illustration,  which 
1 think  not  inapplicable.  At  this  moment,  slaves  cannot  be 
imported  into  the  United  States.  Why  ? Congress  has  for- 
bidden the  importation  of  them  under  severe  penalties.  But 
suppose,  from  the  sickliness  of  trade,  from  inclination,  or  in- 
terest, or  any  other  cause,  our  brethren  of  the  North,  should 
desire  the  revival  of  the  slave  trade,  once  so  profitable  to 
them,  and  Congress  should,  under  their  influence,  repeal  its 
acts ; and  suppose,  at  the  same  time,  that  Wilberforce,  and 
his  party  and  influence,  should  be  cast  out  of  Parliament,  and 
the  trade  should  be  opened  to  Biitish  subjects,  and  in  this 
state  of  things,  (stranger  have  happened)  that  a commercial 
treaty  is  entered  into,  between  the  two  countries,  (why  do  I 
say,  entered  into  ? One  now  exists ;)  in  which  slaves,  (as  much 
•an  acknowledged  article  of  commerce,  as  broadcloths  are) 
may,  under  the  terms  ot  the  treaty,  be  permitted  to  be  brought 
into  our  Southern  ports.  Is  the  Northern  citizen,  to  insist  on 
his  right  to  bring  them  in,  under  the  immunities  he  expressly 
enjoys  under  Ike.  Constitution,  to  carry  his  goods  and  chat- 
tels where  he  pleases?  And  is  the  British  subject  to  point  to 
the  treaty,  as  establishing  his  claim  ? Are  we  to  be  told,  that 
the  treaty  is  the  supreme  law  of  the  land,  and  that  the  treaty- 
making power,  being  rightfully  exercised,  in  permitting  an 
unlimited  liberty  of  commerce,  must  be  paramount  ? The 
idea  is  preposterous,  that  the  sovereign  State  of  South-Caro- 
lina,  whose  right,  to  open  or  shut  her  ports  at  pleasure,  as  to 
the  importation  of  Africans,  lias  always  been  exercised  by 
her  until  1 808,  when  they  were  finally  closed ; should  be 
precluded  from  shutting  them  again  at  any  time  when  she 
shall  conceive,  that  the  further  increase  of  a black  population, 
already  so  large,  shall  endanger  her  domestic  quiet.  But  I 
put  aside  all  hypothetical  views,  and  will  proceed  to  consider 
a case  which  has  existed  in  fact. 

When  the  first  treaty  of  commerce  was  made  with  Great- 
Britain  in  1794,  called  Jay’s  Treaty,  the  port  of  Charleston, 
*>y  a State  Act,  was  then  closed  against  the  importation  of 


o6 

Africans,  and  so  continued  until  ISOS,  when  the  law  was 
repealed.  In  this  treaty  was  inserted  an  article  (the  1 4th) 
exactly  similar  to  the  one  inserted  in  the  present  convention 
with  that  country.  An  unlimited  liberty  of  commerce  was 
then,  as  it  is  now  stipulated  for,  and  nearly  in  the  same  words. 
How  is  it,  I ask,  that  Great-Britain,  who  was  at  that  time 
carrying  on  the  slave  trade,  did  not  insist  upon  bringing 
slaves  into  this  port.  Her  right,  under  Jay’s  treaty,  was  clear 
and  indubitable,  and  yet  she  never  claimed  the  right.  Now 
if  she  acquiesced  in  the  State  law,  because  she  conceived  the 
proviso  at  the  end  of  this  article,  (“  subject  always  as  to  what 
respects  this  article,  to  the  laws  and  statutes  of  the  two  coun- 
tries respectively,”)  to  embrace  the  laws  of  the  individual 
states  as  well  as  the  laws  of  Congress,  which  is  not  Judge 
Johnson’s  construction  ; then,  most  clearly  and  unquestion- 
ably, her  subjects  who  are  persons  of  color,  cannot  now 
claim  ingress,  because  the  stipulated  liberty  of  ingress  for 
the  purposes  of  commerce  and  navigation  by  the  present 
convention,  is  fettered  v ith  the  same  proviso,  and  thus  the 
State  Act  does  not  impugn  the  treaty.  If,  on  the  contrary, 
the  British  ministry  or  people  thought  that  the  true  meaning 
of  the  proviso  was,  that  the  liberty  of  commerce  was  only 
subject  to  the  laws  of  the  United  States,  and  not  of  a parti- 
cular State,  thus  agreeing  with  Judge  Johnson,  and  they 
still  did  not  prefer  their  claim,  because  they'  thought  that  the 
regulation  of  a black  or  colored  population,  within  tiie  limits 
of  South- Carolina,  was  a right  which  properly  belonged  to 
her,  and  therefore  not  within  the  meaning  of  the  treaty,  my 
present  purpose  is  equally  answered.  Be  all  this  as  it  may, 
one  fact  must  stand  forever  undisputed,  and  a very  important 
fact  it  is,  namely,  that  in  tire  history  of  the  United  States, 
a treaty  was  made  with  Great-Britain  which  directly  contra- 
vened a law  of  the  State  of  South-Carolina.  In  this  treaty 
the  rights  of  an  unlimited  commerce  were  clearly  given  to 
her  subjects,  add  yet.  the  law  was  in  constant  operation,  and 
the  right  under  the  treaty  was  never  insisted  on.  Who  can 
suppose  that  Great-Britain,  then  so  discreet,  would  not  be 
equally  so  now,  in  not  claiming  ingress  for  her  black 
subjects? 

There  is  no  better  way  of  getting  rid  of  any  position,  than 
to  point  out  the  absurd  doctrines  and  consequences,  to  which 


$1 

ii  may  lead.  I have  done  this  I hope,  by  several  familiar 
illustrations  in  this  and  the  preceding-  number.  It  is  true 
that  all  these  difficulties,  and  all  this  conflicting  and  clashing 
of  powers  and  claims  may  be  avoided,  and,  in  the  way  sug- 
gested by  the  Judge,  namely : that  if  policy  requires  arrange- 
ments to  be  made,  which  are  considered  essential  to  a parti- 
cular State,  that  it  be  introduced  into  the  Treaty,  by  those 
who  negotiate  it.  This,  however,  is  not  considering  the 
question.  I am  supposing,  that  the  General  Government, 
from  carelessness,  oversight,  or  some  other  cause,  shall  sur- 
render expressly  or  impliedly,  in  a treaty,  an  acknowledged 
right  of  vital  importance,  to  a particular  State ; such,  for  in- 
stance, as  the  right  to  shut  her  ports  against  slaves,  or  to  re- 
gulate the  ingress  of  any  colored  population,  what  then  is  to 
be  done  ? The  course  is  obvious  to  every  reflecting  man.  Let 
the  General  Government  extricate  itself  from  a dilemma,  oc- 
casioned by  its  own  oversight  or  folly,  in  the  best  way  it 
can,  and  let  the  State,  whose  acknowledged  right  has  been 
improperly  suriendered,  and  upon  which  its  peace  and  ex- 
istence depend,  continue  to  exercise  it,  as  if  nothing  had  hap- 
pened. Let  her,  in  every  such  case,  adhere  to  the  rights  re- 
served to  her  by  the  Constitution  of  the  United  States.  Let 
her  ding  to  them  as  the  ark  of  her  salvation. 


NO,  9. 


I have  established,  I think,  most  satisfactorily,  that  a trea- 
ty, though  called  by  the  high-sounding  name  of  the  supreme 
law  of  the  land,  and  to  be  received  as  such  by  all  the  Judges 
in  the  States,  is  on  no  better  footing  than  an  Act  of  Con- 
gress. That,  to  be  binding  on  the  States,  or  even  on  Con- 
gress itself,  it  is  essential,  that  it  be  in  pursuance  of  the  Con- 
stitution— that  its  validity  depends  upon  its  constitutionality, 
and  that  no  State  is  under  an  obligation,  legal  or  moral,  to 
comply  with  its  stipulations,  if  it  expressly  surrenders  a State 
right,  or  interfere  with  a subject  exclusively  of  Slate  Legis- 
lation. That  it  follows  of  consequence,  that  the  treaty-mak- 
ing power,  is  not,  as  the  Judge  contends,  a. paramount  power. 
I have  shewn  it,  to  be  as  restricted  and  as  limited,  as  any 
4 


38 

other  power  in  the  government,  by  supposing  many  cases,  in 
which  a treaty  would  be  void,  and  by  stating  one  case  in 
particular,  in  the  history  of  our  country,  in  which  it  was 
clearly  void.  I have  shewn  in  fact,  that  the  Constitution 
alone  is  paramount. 

From  what  has  been  said,  in  the  preceding  numbers,  there 
arises  this  incontrovertible  position,  from  which  1 cannot  be 
driven,  and  I wish  my  readers  to  bear  constantly  in  mind.  It 
is  this : That  the  President  and  Senate,  who  are  the  treaty 
making  power  under  the  Constitution,  are  (as  affects  the  im- 
mediate question  at  issue)  to  be'  regarded  in  no  other  light, 
than  as  Delegates  from  the  several  States,  to  negotiate  with 
Great  Britain,  a treaty  of  commerce,  for  their  benefit,  under 
the  most  general  or  enlarged  powers,  as  to  the  subject  mat- 
ter, with  an  obligation  on  the  part  of  the  States,  to  ratify 
any  convention,  to  be  made  in  virtue  of  their  powers. — 
And  now  comes  the  true  question : can  a stipulated  liber- 
ty of  ingress,  for  the  purposes  of  commerce,  be  so  con- 
strued, as  to  deprive  one  of  those  States,  with  a black  popu- 
lation, from  excluding  free  persons  of  color,  who  are  British 
subjects.  I think  I put  the  question  fully  and  fairly,  for  I 
fear  not  to  meet  it.  It  is  idle,  in  any  inquiry  after  truth,  to 
look  at  things  in  their  form  and  color  only.  Let  us  get  at  the 
substance  of  the  transaction.  Let  us  see  how  the  President 
and  Senate  stand, as  to  their  relations  with  the  several  States. 
When  they  ate  exercising  the  treaty -making  power,  are  they 
not  acting  under  delegated  instructions  from  the  States  ? Are 
they  not  Plenipotentiaries  to  all  intents  and  purposes,  and 
must  not  all  their  acts,  or  all  treaties  made  by  them,  be  sub- 
ject to  the  same  rules  of  interpretation,  which  would  govern, 
if  the  power  to  make  the  treaty  was  delegated  to  one  man 
only,  or  if  it  were  a power  from  one  individual  to  another.  If 
this  be  the  case,  and  the  question  be,  whether  a stipulated 
liberty  of  ingress,  for  mere  purposes  of  commerce,  slrall  be 
extended  to  apply  to  those,  whom  the  State,  giving  the  power, 
shall  regard  as  dangerous  to  its  safety,  to  a common  mind, 
this  question  admits  of  an  easy  answer.  Common  reason 
would  say  to  any  man,  that  he,  to  whom  a general  power  is 
delegated  by  another,  no  matter  what  the  subject  matter  be, 
cannot  so  use  it,  as  to  bind  his  constituent,  to  do,  or  permit 
to  be  done,  that  which  might  be  ruinous  to  him,  and  which, 
at  the  same  time,  neither  of  the  parties,  could  in  all  human 


39 

probability  have  contemplated.  The  cases  to  this  point  in 
the  books  are  numberless,  and  it  is  the  constant  practice  of 
the  courts  of  law  and  equity,  to  give  relief  in  all  such  cases. 
The  ground  upon  which  relief  is  given,  is  unquestionably 
just.  It  is  amongst  the  immutable  principles  of  reason  and 
of  sound  sense,  and  the  stupendous  structure  of  the  common 
law,  is  but  an  improved  system  of  reason  and  equity,  founded 
in  the  very  nature  and  fitness  of  things,  that  no  man  would 
willingly  confer  on  another,  a power  to  do  any  act,  which, 
by  construction,  is  to  deprive  him  of  an  essential  right,  or  to 
do  him  an  essential  harm.  The  rules  which  regulate  the 
transactions  of  individuals,  under  general  or  special  powers, 
are  equally  applicable  to  nations,  in  the  interpretation  of 
powers,  from  a Prince  to  his  Ambassador  or  General,  and  in 
the  interpretation  of  treaties  between  one  sovereign  state  and 
another.  All  these  subjects,  as ^ they  relate  to  nations,  have 
been  fully  treated  by  the  writers  on  international  law.  Gro- 
tius,  in  treating  of  the  interpretation  of  contracts,  or  conven- 
tions, or  agreements,  and  public  treaties,  amongst  many  pas- 
sages which  mi<?ht  be  cited,  says.  “Since  it  is  impossible  to 

•/VS.":;  and  spociiy  ..ver . ;;.v;  l ' 1 

eservittg  the  liberty  of  exempting  such  cases,  as  the  party 
could,  were  he  present  himself,  exempt,  but  this  must  not  be 
lone,  without  abundance  of  caution,  and  when  there  ate  suffi- 
cient tokens  for  it.” — Lib.  2,  chap.  1 <5,  sec.  26. 

a One  infallible  token,”  says  he,  “ that  there  ought  to  be 
an  exemption,  is,  when  to  adhere  precisely  to  the  letter, 
would  be  unlawful,  that  is  repugnant  to  the  laws  of  God  or 
nature , for  there  are  some  things  that  arc  naturally  exempt- 
ed, though  they  are  in  no  wise  comprised  in  the  sense  of  the 
law.” — Ibid. 

“ Another  token  of  restriction  is,  when  to  stick  close  to  the 
letter , is  not  absolutely,  and  of  itself  unlawful ; but  when 
upon  considering  the  thing  with  candour  and  impartiality, 
it  appears  to  be  too  grievous  and  burthensome  to  be  borne.'7 
Ibid. 

Let  it  now  be  asked,  my  fellow-citizens,  whether  the  ne- 
gotiators of  toe  present  convention  had  in  view,  manumitted 
slaves  of  the  West-Indies,  as  the  seamen,  who  were  to  navi- 
gate the  ships  trading  to  South-Carolina.  Was  it  possible 
for  the  American  Commissioners  to  foresee  and  specify  eve- 


40 

ry  accident,”  and  that  there  would  so  soon  u be  a necessity 
for  reserving  the  liberty  of  exempting  the  cases  of  bit  e'e 
subjects Would  not,  “ the  party  herself,  (South-Caroli- 
na)  who  delegated  the  power  to  the  President  and  Senate  to 
make  the  treaty,”  would  not  she,  “had  she  been  present, 
have  herself  exempted  these  cases  ?” — Is  it  not  “ adhering 
precisely  to  the  letter ” of  the  instrument,  to  say  that  ne- 
groes were  then  contemplated  as  subjects ? Amongst  “the 
things  naturally  exempted,  though  they  are  in  no  wise  com- 
prised in  the  sense  of  the  law,”  ought  not  colored  subjects  to 
be  exempted,  who  are  dangerous  to  the  peace  and  quiet  of  the 
constituent  in  the  treaty  ? Is  not  the  extra  judicial  construc- 
tion of  Judge  Johnson  “ sticking ” (according  to  Grotiusq 
“ too  close  to  the  letter,”  and  last  of  all,  “ upon  considering 
the  thing  with  candour  and  impartiality ,”  does  it  not  “ ap- 
pear to  be  too  grievous  and  burthensome  to  be  borne,”  by 
the  community  of  Charleston,  and  of  the  State. 

Cut  it  is  impossible  to  look  into  Vattel,  Grotius,  and  Puf- 
fendorf,  without  perceiving,  from  the  general  principles,  laid 
down  by  them,  that  no  public  Ambassador,  or  General,  how- 
ever unlimited  his  power  or  instructions,  can,  in  any  treaty 
or  contract  for  his  sovereign,  surrender  a right,  the  exercise 
of  which  is  essential  to  the  safety  of  the  state.  If  he  does, 
the  sovereign  is  not  bound  to  ratify  the  convention.  The 
reason  is  obvious.  Self-preservation,  as  we  all  know,  is 
laid  down  by  the  writers  to  be  the  first  law  of  nature ; and 
as  it  is  “the  just  and  rational  application  of  the  law  of 
nature,  or  of  its  principles,  to  the  affairs  and  conduct  of 
Princes  and  States,  which  constitutes  the  particular  science, 
called  the  Law  of  Nations,”  hence  it  necessarily  also  be- 
comes a fundamental  principle,  in  the  law  of  nations,  that 
a State  never  can  surrender  a right,  the  exercise  of  which 
Is  indispensable  to  its  safety.  It  is  a right  inherent  in  every 
sovereign  State;  and  it  matters  not,  whether  a State  be  in 
league  or  confederacy  with  others  or  not,  or  whether  her  so- 
vereignty be  entire  or  divided,  she  still  possesses,  according 
to  every  writer  on  international  law,  the  right  to  protect  her- 
self. To  deny  this  right  to  South-Carolina,  who,  at  the  first 
treaty  of  peace,  was,  and  still  is,  a sovereign  State,  is  to  take 
from  her  that  first,  that  unalienable  attribute,  which  is  the 
foundation  of  all  sovereignty,  and  without  which  it  is  absurd 


41 

ter  say,  sovereignty  can  possibly  exist.  I will  not  tire  my  read- 
ers (for  I am  writing  plainly  for  the  public,  and  not  as  a law* 
yer,)  with  long  quotations  from  these  writers.  All  lawyers 
who  read  this  will  know,  that  my  principle  is  as  clear  as  any 
which  is  known  in  the  law  of  nations.  I will  cite  but  one 
passage — Vattel,  in  treating  of  the  duties  which  nations  and 
states  owe  to  themselves,  says — “ A nation  or  state  has  a 
right  to  every  thing  which  can  secure  it  from  threatening 
danger,  and  to  keep  at  a distance  ichatever  is  capable  of 
causing  its  ruin  ; and  that,  for  the  very  same  reason,  that 
establishes  its  right  to  the  things  necessary  to  its  preserva- 
tion— Vat.  Lib.  1.  ch.  2.  sec.  20. 

I put  it  now  to  anj’  one  to  say,  whether  the  evil,  which  the 
State  law  designs  to  avert,  by  forbidding  the  introduction  of 
tree  negroes  amongst  our  slaves,  is  not  as  much  a “ threaten- 
ing danger ” to  the  good  people  of  South-Carolina,  and  will 
not  be  as  much  “ a cause  of  ruin ” to  them,  their  families 
and  their  interests,  “ if  not  kept  at  a distance as  any  dan- 
ger, which  could  have  been  contemplated  by  this  great  scho- 
lar and  civilian,  when  he  wrote  his  immortal  work.  I do 
aver,  that  the  free  and  uninterrupted  ingress  of  a colored  po- 
pulation into  this  State,  from  the  North,  and  elsewhere,  with 
their  known  habits,  feelings  and  principles,  animated  and 
emboldened  as  they  are,  by  the  philanthropy  of  the  day,  and 
by  the  events,  which  Europe  in  its  throes  and  convulsions 
casts  upon  mankind,  is  the  most  formidable  evil,  which  South- 
Carolina  has  to  look  upon  in  these  her  days  of  apparent  quiet. 
To  permit  such  persons,  with  such  principles,  to  have  a foot- 
ing on  our  soil,  is  to  introduce  a moral  pestilence,  which  must 
destroy  subordination  in  the  slave,  and  with  it  the  State  it- 
self. Am  I to  be  asked  to  prove  that  which  is,  or  ought  to 
be,  within  the  observation  and  experience  of  every  intelligent 
inhabitant  of  the  land  ? This  would  be  unfair.  Every  one 
knows,  that  this  is  not  an  imaginary,  but  an  actual  evil.  It 
is  moreover  an  evil,  which  from  its  very  nature,  requires 
more  precaution  to  avert,  than  any  other.  It  is  a moral  con- 
tagion. It  is  the  Upas  tree,  whose  touch  is  death.  It  is  not 
an  open,  but  a secret  enemy,  deeply  concealed  in  the  thoughts, 
where  no  laws  or  police  can  reach  him,  and  only  appears  as 
occasion  requires.  It  is  a pestilence,  which  walks  in  darkf 
ness,  and  a sickness  which  destroys  in  the  noon-day.  It  is 


42 

an  evil,  which  comes  from  a distance,  slow  and  cautious  Tn 
every  step,  stealing  into  our  community,  as  a thief  in  the 
night.  Insidious  it  is  in  every  attack.  It  is  not  the  bold 
dagger  of  the  open  assassin,  which,  ere  it  reaches  the  great 
fountain  of  life,  some  arm  may  be  found  happily  to  avert. — 
But  it  is  he,  who  upon  the  secure  hour,  steals 

“ With  juice  of  cursed  hebenon  in  a phial,. 

And  in  the  porches  of  the  earsdotlipour 
The  leperous  distilment;  whose  effect 
Holds  such  an  enmity  with  blood  of  man. 

That  swift  as  quicksilver,it  courses  through 
The  natural  gates  and  alleys  of  the  body  ; 

And  with  a sudden  vigor  it  doth  posset 
And  curd  the  thin  and  wholesome  blood." 

Is  then,  my  fellow-citizens,  the  introduction  of  a colored 
population  an  evil,  or  is  it  not  ? What  is  it,  but  the  juice  of 
cursed  hebenon,  which  the  Abolition  Societies  of  the  North, 
and  elsewhere,  would  pour  into  the  porches  of  the  ears  of  our 
domestics  ? Can  any  distilment  be  more  leperous,  than 
the  principles  which  are  embattled  against  our  peace,  and 
which  these  colored  persons  in  ships,  serve  to  communicate. 
I conceive  there  are  none.  They  hold  such  an  enmity 
with  the  blood  and  wholesome  policy  of  the  State,  that  it  must 
posset  and  curd,  and  with  a sudden  vigor  too,  if  the  distilment 
be  but  steadily  poured  in  the  “ secure  hour  of  our  sleep.” 
This  then  is  an  evil,  and  it  is  an  evil  which  must  be  kept 
at  a distance.  If  it  is  permitted  to  steal  upon,  us,  it  will  in- 
troduce  the  poison,  which,  by  its  swift  coursing  through  the 
natural  gates  and  alleys  of  the  body  of  the  State,  will 

" dispatch  us  all, 

Cut  off  in  the  blossoms  of  our  sins  ; 

No  reckoning  made,  but  sent  to  our  account^ 

With  all  our  imperfections  on  our  heads. 


NO.  10. 


I trust,  I have  so  far  shewn,  that  the  necessity  for  the 
State  to  take  care  of  itself,  is  clear  and  obvious.  But,  sayf 
the  Judge,  if  the  StatejaX&ne,  is  to  judge  of  the  necessity^ 


45 

where  is  this  to  lancf  us?  Is  it  not  asserting  the- right  in  each 
State,  to  throw  off  the  Federal  Constitution  at  its  will  and 
pleasure,  and  thus  to  make  the  Union  a rope  of  sand  ? I an* 
swer,  No.  This  does  not  necessarily  follow.  I contend,  that 
this  State  may  claim  the  right  of  judging,  at  what  time  and 
in  what  manner,  she  ought  to  exclude  a foreign  black  popu- 
lation from  her  limits,  and  that  she  shall  exercise  this  right, 
and  yet  the  Union  shall  not  be  endangered,  but  the  Constitu- 
tion be  yet  preserved  in  its  full  vigor  and  beauty.  It  is,  be- 
cause the  Judge  overlooks  the  inherent  rights  of  the  indivi- 
dual States,  expressly  reserved  to  them  by  the  Constitution, 
that  he  falls  into  this  error.  Who  would  ever  think  of  taking 
up  a question  of  this  nature  in  the  abstract  ? Must  not  that 
view  be  necessarily  a limited  and  imperfect  one,  which  would 
throw  aside  the  peculiar  circumstances,  under  which  the  Con- 
stitution of  the  United  States  was  formed.  This  is  a question 
mi  generis , and  to  say,  that  it  can  receive  a liberal  and  fair 
consideration,  without  adverting  to  those  circumstances,  and 
to  the  probable  motives  which  must  have  influenced  this 
State,  in  coming  into  the  compact,  is  to  maintain  a wrong 
principle.  It  is  the  height  of  unfairness,  to  reason  upon  any 
abstract  proposition,  in  an  affair  of  this  magnitude.  Let  us- 
then  advert  to  the  situation,  and  the  feelipgs  of  the  States, 
when  they  formed  our  present  happy  Constitution. 

Under  the  old  Confederation,  the  States  were  desirous, 
that  a more  efficient  form  of  government  should  be  adopted. 
But  there  were  difficulties,  and  “■  these  difficulties  were  in- 
creased by  a difference  amongst  the  States,  as  to  their  situa- 
tion, habits,  and  ptfrticular  interests.”  All  the  States  were 
anxious,  that  the  general  interest  and  safety  should  be  better 
provided  for ; and  yeta  when  the  price  or  sacrifice  came  to  be 
mentioned,  which  it  was  necessary  for  each  to  make',  each 
State,  as  is  natural,  was  desirous  to  retain  as  much  of  its  so- 
vereignty, as  it  could.  What  was  to  be  done  ? Nothing  (as 
the  President  of  the  Convention  says)  but  for  “ each  State  to 
be  less  rigid  on  points  of  inferior  magnitude , than  might  be 
expected,  under  other  circumstances.”  As  soon  as  this  prin- 
ciple was  acquiesced  in  and  adhered  to,  the  great  work  was 
finished ; and  the  present  Constitution  was  presented  by  Ge- 
neral Washington,  as  President  of  the  Convention,  for  the 
consideration  and  acceptance  of  the  States,  “ as  the  result  of 


44 

\i  spirit  of  amity  and  mutual  forbearance,  which  tii e-pem* 
fiarity  of  our  political  situation  rendered  indispensable.” 
This  reference  to  the  principles  of  compromise,  which  is 
the  characteristic  feature  of  our  happy  government,  and  which 
distinguishes  it  from  every  other,  is  very  important  to  be  no- 
ticed in  this  place  ; and  it  is  still  more  important,  to  be  as- 
sured, as  we  are,  by  the  Convention  itself,  that  the  great 
principle  upon  which  each  State  was  understood  to  act,  was, 
that  it  was  “ not  to  be.  rigid  on  points  of  inferior  magni- 
tude.” It  follows  then,  that  on  points  of  vital  importance, 
they  were  expected  to  be  rigid ; and  it  could  never  be  con- 
ceived, that  upon  a point  of  such  magnitude  to  South-Caro- 
lina,  as  the  regulation  of  a black  population  found  within  her 
limits,  she  could  have  been  otherwise  than  rigid,  if  her  right 
to  be  the  sole  and  sovereign  judge  on  this  subject,  had  then 
been  a matter  of  doubt.  What  was  the  situation  of  South- 
Carolina  when  she  accepted  this  Constitution  ? To  use  a fa- 
miliar phrase,  lately  introduced,  she  was  a slave-holding 
State,  a term  by  no  means  unappropriate  to  our  present  pur- 
pose. She  was  then , and  is  noio,  a State,  whose  prosper^ 
and  existence  depends  upon  the  labor  of  her  slaves.  From 
time  immemorial,  all  her  institutions,  and  her  whole  domestic 
polity  and  jurisprudence,  have  been  founded  upon  the  princi- 
ple, that  negroes  and  mulattoes  in  her  land,  whether  slave  or 
free,  had  no  civil  or  political  rights.  That,  as  to  the  regula- 
tion of  a colored  population,  she  was,  and  ought  to  be,  the 
best  and  only  judge.  She  has  not  maintained  this  right  at 
one  time,  and  abandoned  it  at  another;  but  in  every  political 
condition  in  which  she  has  ever  been  placed,  whether  as  a 
colony  of  Great  Britain,  as  one  of  the  old  Confederation,  or 
as  a member  of  the  late  Federal  Compact,  she  has  invariably 
maintained,  and  adhered  to  this  principle.  Her  discretion 
alone,  has  been  the  sovereign  rule  of  her  conduct.  She  opens 
her  ports  for  the  importation  of  Africans,  and  she  shuts  them 
again  at  her  pleasure.  She  admits  at  one  time,  slaves  and 
persons  of  color,  to  be  brought  from  her  Sister  States,  and  she 
again  prohibits,  and  again  admits  them.  She  excludes,  by 
statute,  slaves,  and  persons  of  color,  bond  and  free,  from  the 
West-Indies,  and  the  continent  of  America,  and  from  all  oth- 
er parts.  In  her  laws,  all  free  colored  persons  are  treated  as 
if  they  were  slaves;  the  one  as  much  the  subject  of  the  negro 


45 

act  as  the  other.  Her  right  to  do  all  this,  was  never  ques- 
tioned. When  she  goes  into  an  Union  of  the  States,  she  is 
in  the  full  exercise  and  enjoyment  of  her  inherent  rights. — 
She  carries  with  her,  feelings  and  interests,  certainly  very 
different  from  those  of  her  Sisters  of  the  North;  and  though 
she  might  not  be  disposed  to  be  rigid,  as  recommended  by 
the  Convention,  on  minor  points,  yet  upon  such  a point,  as 
the  consideration  of  this  subject  involves,  it  would  have  been 
madness  in  her,  not  to  have  rejected  the  Constitution,  as  an 
insult  to  her  understanding  and  feelings,  and  to  have  sought 
for  some  other  alliance,  whose  friendship  would  not  be  death 
to  her.  If  she  did  not  at  that  day,  make  an  express  provision 
for  the  exercise  of  this  power  over  blacks,  which  might  come 
into  her  limits,  it  was  because  no  man  at  that  day  doubted  her 
rignt,  or  her  power  to  exercise  such  a light.  She  did  not 
then  feel,  that  it  would  so  soon  become  necessary,  to  exclude 
from  her  territory,  even  black  seamen  from  abroad.  There 
were  then  afloat  no  doctrines  of  African  emancipation.  If 
they  existed  at  all,  they  existed  only  in  the  minds  of  a few 
pseudo-philanthrophists.  These  doctrines  had  not  stalked 
abroad, as  now,  “ shaking  from  their  hair  horrid  pestilence." 
The  Abolition  Society  of  Philadelphia,  the  British  Associa~ 
tion  in  London,  and  the  Amis  des  Noirs  in  Paris,  had  not 
then  been  formed.  The  National  Assembly  of  France,  had 
not  yet  promulgated  their  decree,  to  give  privileges  to  their 
colored  colonists,  and  the  Abbe  Gregoire  had  not  written 
that  celebrated  letter,  which  was  afterwards  the  torch,  which 
lighted  up  the  insurrection  in  St.  Domingo  Why  do  I 
say,  that  these  things  had  not  then  happened  ? I forget  the 
French  Revolution  itself.  This  memorable  event,  from 
which  came  licentiousness,  as  well  as  liberty — irreligion, 
atheism,  and  every  species  of  madness,  and  every  wrong 
principle  of  enthusiasm  ; this  volcano,  which  vomited  from 
its  crater,  every  doctrine  which  was  calculated  to  overturn  all 
governments,  and  to  unsettle  the  principles  of  obedience,  and 
subordination  in  the  minds  of  men,  whether  bond  or  free — 
this  political  Vesuvius  was  then  quiet  and  harmless.  Not 
even  those  who  were  peaceably  cultivating  their  vineyards 
around  its  fertile  borders,  heard  any  rumbling  or  noises,  which 
could  portend  the  dreadful  irruptions  of  fires,  which  so  soon 
succeeded,  and  which  have  at  intervals,  continued  to  araase 


46 

the  nations.  South-Carolina  was  then,  unsuspicious,  that  it 
would  be  reserved  for  a Judge  of  the  United  States’  Bench, 
from  her  own  bosom,  to  be  the  first  to  volunteer  an  opinion, 
that  in  giving  up  the  right  of  regulating  her  commerce,  she 
ever  intended,  that  commerce  should  be  so  regulated,  as  to 
have  the  blacks  of  the  West-Indies  and  of  the  world,  to  be 
forced  upon  her  against  her  will.  Unsuspicious,  however, 
as  she  was,  of  what  was  so  soon  to  happen,  it  appears  that 
she  gave  early  proofs  of  her  jealousy,  lest  State  rights  should 
be  swallowed  up  in  the  Sovereignty  of  the  General  Govern- 
ment. As  if  fearful,  that  some  interference  with  the  Southern 
States,  as  to  the  regulation  of  her  domestic  policy,  might  be 
claimed  under  the  Constitution,  (though  not  exactly  the 
one,  now  insisted  upon  in  the  case  of  Elkison)  South-Ca- 
rolina was  amongst  those  States,  whose  conventions  at  the 
time  of  their  adopting  the  Constitution,  were  uneasy,  and 
who  <£  expressed  a desire,  in  order  to  prevent  misconstruc- 
tion and  abuse  of  its  powers,  that  further  declaratory  and  re- 
strictive clauses  should  be  added.”  It  is  here  important  to 
notice,  that  the  eleventh  article  in  the  proposed  amendments, 
which  were  submitted  to  th  ' States,  :u.  i which  was  after- 
ward* adopted,  came  from  the  Convention  of  South-Carolina. 
It  is  in  these  words  : — “ The  enumeration  in  the  Constitu- 
tion, of  certain  rights,  shall  not  be  construed  to  deny  or  dis- 
parage others,  retained  by  the  People.” 

The  other  amendment  on  the  same  subject  is  in  these 
words  : — “ The  powers  not  delegated  to  the  United  States, 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively . and  to  the  People .”  The 
insertion  of  these  two  clauses  in  the  Constitution,  as  if  one 
was  not  sufficient,  speaks  volumes.  Whilst  these  two  amend- 
ments shew,  that  there  were  powers  reserved  to  the  different 
States,  they  establish,  at  the  same  time,  most  unequivocally 
and  clearly,  that  the  States  are  not  to  be  deprived  of  inherent 
rights,  or  of  sovereignty  not  actually  surrendered,  by  mere  con~ 
struction,  or  implication.  But  Judge .( o hnson  would  deprive 
this  State  of  her  inherent  rights,  and  by  implication.  Accord- 
ing to  his  opinion,  the  right  of  South-Carolina,  to  exclude  fo- 
reignf  ree  negroes  from  her  limits,  is  destroyed  by  the  implied 
powers  of  Congress.  His  position  is,  that  to  introduce  Jack 
British  subjects  as  seamen  into  our  ports,  is  incident  to  navi- 


47 

gation  and  commerce,  and  that,  as  Congress  alone  can  regu- 
late commerce,  she  can  regulate  it  in  any  way  she  pleases. — 
He  kindly  admits,  that  the  black  seamen  may  be  confined  to 
their  ships,  if  it  be  considered  dangerous  for  them  to  go 
abroad.  This  power,  he  thinks,  may  be  lawfully  exercised 
by  his  native  State. 

But  where  the  army  of  constables  is  to  come  from,  who  are 
to  confine  those  seamen  on  board  ; who  is  to  pay  them,  and 
how  communication  is  to  be  avoided,  when  the  vessels  are 
along  side  the  wharves,  and  our  own  slaves  are  working  on 
board,  we  are  not  informed. 

<cMost  excellent  Judge, 

A Daniel  come  to  judgment ; Yea,  a Daniel ! 

You  know  the  law,  your  exposition 
Hath  been  mostsound-- 

Oh  wise  and  upright  Judge 

How  much  elder  art  thou  than  thy  looks.” 

When  the  Judge  comes  to  speak  of  the  blaclc  merchants, 
or  the  black  supercargoes,  these  he  thinks  have  a right  to 
occupy  houses  and  warehouses  in  our  city,  for  the  purposes 
of  commerce.  The  treaty  limits  no  time,  and  he  says,  if 
we,  the  people  of  South-Carolina,  dare  to  molest  them,  it  is  a 
declaration  of  war  against  Great  Britain.  His  words  are: 
“ If  our  fears  extend  to  the  merchant,  the  supercargo,  or  mas- 
ter, being  persons  of  color,  I acknowledge,  that  as  to  them, 
the  treaty  precludes  us  from  abridging  their  right  to  free  in- 
gress and  egress,  and  occupying  houses  and  warehouses  for 
their  commerce.  As  to  them,  this  law  is  an  express  infrac- 
tion of  the  treaty.  i\o  such  law  can  be  passed  consistently 
with  the  treaty,  and  unless  sanctioned  by  diplomatic  arrange- 
ment, the  passing  of  such  a law,  is  tantamount  to  a declara- 
tion of  war.  ” 

Now,  my  fellow-citizens,  around  whose  hearts  are  entwined 
every  feeling  which  can  bind  you  to  your  loved  and  native  land, 
what  is  this  but  to  assert,  that  the  President  and  Senate  of  the 
United  States  have  the  indisputable  right,  so  as  to  bind  this 
State  by  treaty,  as  to  admit  the  black  subjects,  merchants  and 
traders  of  Great  Britain  (and  she  will  probably  have  a few  hun- 
dred thousand  of  the  n if  W ilberforce  he  not  confined  in  a 
mad-house)  into  our  State,  and  here  to  reside  and  remain  as 


48 

merchants,  (for  the  words  of  the  treaty  go  rims  far.)  and  thui 
if  the  State  of  South-Carolina  resists  such  an  assumption  of 
power  as  this,  she  violates  her  obligation  to  the  United  States. 
What  is  this,  but  to  say,  that  if  the  people  of  the  Norther* 
States  shall  desire  a commerce  with  the  Emperor  of  Hayti, 
(and  they  are  now  complaining  that  they  have  not  this  trade) 
that  the  President  and  Senate  may  permit  the  brigands  of  St. 
Domingo  to  come  here  freely  and  securely  with  their  cargoes, 
and  that  we  must  quietly  and  tamely  submit,  because  this 
State  gave  up  to  Congress  the  right  to  regulate  commerce. 
Under  these  few  words  “ shall  regulate  commerce ,”  a State 
right  of  greater  magnitude,  than  any  she  has  ever  claimed,  or 
exercised,  is  to  be  swallowed  up  in  that  tremendous  gulph, 
the  implied  powers  of  Congress.  So  says  Judge  Johnson, 
in  an  extra  judicial  opinion,  published  to  the  world  ; publish- 
ed too,  against  a determination  which  he  previously  promul- 
gated in  a printed  decision,  that  he  never  wished  to  see  a nisi 
prius  opinion  of  his  in  print.  The  amiable  and  distinguish- 
ed Judge  Story’s  nisi  prius  reports  ought  not,  ip  the  mind 
of  our  Judge,  to  go  down  to  posterity,  until  they  are  revised 
and  confirmed  by  some  tribunal  of  dernier  resort.  But  every 
thing  that  comes  from  his  extrajudicial  pen,  no  matter  how 
Tiurtful  to  the  public  weal,  is  to  be  submitted  to  without  fur- 
ther review. 

“ Now  in  the  name  of  all  the  Gods  at  once, 

Upon  what  meat  doth  this  onr  Cajsar  feed, 

That  he  is  grown  so  great 5 Age,  thou  art  sham'd, 

Rome,  thou  hast  lost  the  breed  of  noble  bloods — 

When  went  there  by  an  age  since  the  great  flood, 

But  it  was  fam’d , with  more  than  with  one  man  ? 

When  could  they  say,  till  now,  that  talk’d  of  Rome, 

That  her  wide  walls  encompass’d  but  ONE  MAN!' 


NO.  11. 


I have  just  adverted  to  the  peculiar  circumstances  under 
which  the  Federal  Compact  was  formed,  which  is  now  the 
happy  bond  of  Union  of  all  the  States ; and  I hope  I have 
satisfied  many  of  my  fellow-citizens,  that  South-Carolina,  at 


49 

the  time  of  her  acceptance  of  the  Constitution,  did  not  intend 
to  give  up  that  essential  part  of  sovereignly,  which  is  indis- 
pensable to  her  internal  safety ; and  that  in  particular,  she 
never  could  have  contemplated  to  abandon  such  a right,  as 
that  of  regulating,  at  her  discretion,  any  colored  population 
which  might  come  within  her  limits.  To  hear  some  persons 
speak  on  this  subject,  one  would  be  led  to  suppose,  that  the 
State  sovereignties  were  all  merged  in  that  of  the  General 
Government ; that  the  powers  retained  by  the  States  are  un- 
important and  few;  that  they  surrendered  every  essential  at- 
tribute of  sovereignty,  and  that  they  are  now  only  exercising 
the  duties,  and  acts  of  so  many  corporations.  This  certainly 
was  not  the  opinion  of  those  who  framed  the  Constitution,  and 
I trust,  that  I shall  briefly  shew,  that  it  is  not  a correct  opi- 
nion. Let  us  see,  in  the  .first  place,  what  were  the  opinions 
of  those,  by  whose  influence  the  Constitution  was  made  agree- 
able to  the  people  at  large.  In  the  ‘ Federalist,"1  which  was  a 
series  of  numbers,  written  by  Hamilton,  Jay,  and  Madison, 
for  the  purpose  of  removing  the  objections  daily  urged  against 
the  new  Constitution,  and  which  woik  has  been  permitted  to 
be  read  as  authority  in  our  Courts,  the  authors,  in  discussing 
the  supposed  danger  from  the  powers  of  the  Union  to  the 
State  Governments,  say,  “ The  State  Governments  may  be 
regarded  as  constituent  and  essential  parts  of  the  Federal  Go- 
vernment ; whilst  the  latter  is  no  icise  essential  to  the  opera- 
tion or  organization  of  the  former.  Without  the  intervention 
of  the  State  Legislatures,  the  President  of  the  United  States 
cannot  be  elected  at  all,  and  the  Senate  is  elected  absolutely 
and  exclusively  by  the  State  Legislatures.  Even  the  House 
of  Representatives,  though  drawn  immediately  from  the  peo- 
ple, will  be  chosen  very  much  under  the  influence  of  that 
class  of  men,  whose  influence  over  the  people  obtains  for 
themselves  an  election  into  the  State  Legislatures.  Thus, 
each  of  the  principal  branches  of  the  Federal  Government, 
will  owe  its  existence,  more  or  less,  to  the  favor  of  the  State 
Governments.  On  the  other  side,  the  component  parts  of  the 
State  Governments,  will,  in  no  instance  be  indebted  for  their 
appointment  to  the  direct  agency  of  the  Federal  Govern- 
ment.”— 1 vol.  Fed.  306. 

Again — “ The  powers  delegated  by  the  Constitution  to 
the  Federal  Government,  are  few,  and  defined,  Those  which 
5 


50 

remain  to  the  State  Governments,  are  numerous  and  inde- 
Jtned.  The  former  will  be  exercised  on  external  objects,  as 
war,  peace,  negotiation,  and  foreign  commerce,  with  which 
last,  the  power  of  taxation  will  for  the  most  part  be  connect- 
ed. The  powers  reserved  to  the  States,  extend  to  all  the 
objects,  which  in  the  ordinary  course  of  affairs,  concern  the 
livcSy  liberties , and  properties  of  the  people,  and  the  inter- 
nal order , improvement,  and  prosperity  of  the  State.” — 
Ibid,  308. 

There  cannot,  I think,  be  a more  general  and  extensive 
power  allowed  to  the  States,  as  inheient  rights,  than  those 
which  might  be  enumerated,  as  coming  within  the  meaning 
of  these  passages.  If  the  powers  reserved  to  the  States,  do 
extend  to  all  the  objects,  which  in  the  ordinary  course  of  af- 
fairs, concern  the  lives,  liberties,  and  property  of  the  inhabi- 
tants, and  the  internal  order  of  the  State,  as  is  the  opinion  of 
these  writers,  I entreat  any  one  of  my  readers,  to  point  out 
an  object,  which  has  so  ordinarily  concerned  the  people  of 
South-Carolina,  as  the  regulation  of  a black  population  with- 
in her  limits,  whether  bond  or  free.  From  the  first  settlement 
of  the  State,  until  the  present  period,  the  regulation  of  these 
people  has  been  in  the  ordinary  course  of  affairs,  the  princi- 
pal subject  of  our  polity  and  jurisprudence.  The  time  is  not 
in  the  memory  of  man,  when  these  people  were  not  the  pecu- 
liar subjects  of  police  regulations.  But  why  should  I place 
the  question  where  it  ought  not  to  rest,  namely,  in  the  opi- 
nion of  any  sect  of  men  ? Let  us  see,  how  stands  the  question 
as  to  fact.  Is  South-Carolina  at  this  moment  an  independent 
State  ? I answer,  she  is  clearly  so.  How  does  this  appear  ? 

I answer,  she  was  independent  when  she  came  out  of  the  Re- 
volutionary War.  This  is  proved,  first,  by  the  Declaration 
of  Independence — That  these  colonies  are,  and  of  right 
ought  to  be  free,  sovereign,  and  independent  States,”  and  by 
the  recognition  of  this  independence,  in  its  fullest  extent,  by 
Great  Britain,  at  the  treaty  of  peace.  Let  us  trace  the  his- 
tory of  the  States  to  the  confederation.  We  here  find,  in  the 
second  article  of  this  compact — “ That  each  State  is  acknow- 
ledged, to  .retain  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right,  which  is  not  by  this 
confederation  expressly  delegated  to  the  United  States,  in 
Congress  assembled.”  Their  sovereignty  and  independence 


5\ 

then  being  indisputable,  at  these  t'.vo  periods,  lias  any  a cl 
been  done,  which  has  since  deprived  them  of  all  sovereignty 
whatever  ? Did  they  give  up  all  sovereignty  by  entering  into 
the  Federal  compact  ? I should  conceive  not.  “ The  people 
of  the  United  States,”  says  the  historian  of  South-Carolina, 
“ gave  no  new  powers  to  their  rulers,  but  only  made  a more 
judicious  arrangement  of  what  they  had  formerly  ceded. — 
They  enlarged  the  powers  of  the  General  Government,  not 
by  taking  from  the  People , but  from  the  State  Legislatures.” 
The  sum  and  substance  of  all  that  passed  at  that  day,  be- 
tween the  People  of  the  United  States  and  their  Governors, 
was  simply  this : We,  the  people  of  the  respective  States* 
finding  it  totally  incompatible  with  the  feelings,  habits,  opi- 
nions, and  interests,  which  are  so  dissimilar  in  the  different 
sections  of  our  country,  to  unite  ourselves  in  one  consolidated 
Government,  for  every  object,  internal  as  well  as  external', 
are  willing  to  unite  for  such  external  objects,  as  we  all  agree 
can  be  best  promoted  by  union ; and,  to  this  end*  we  will 
confer  any  powers,  or  sovereignty,  which  may  be  necessary. 
But  as  to  the  regulation  of  our  local  interests  and  concerns, 
upon  which  there  must  be  a perpetual  difference  of  opinion,  it 
is  proper,  that  the  power  to  regulate  these,  should  remain 
where  it  is  now  lodged,  that  is,  in  the  People  of  each  State, 
who,  as  to  all  matters  of  State  policy,  shall  be  supreme:  The 

Constitution  of  the  United  States,  it  must  be  remembered, 
resembles  nothing  in  history,  ancient  or  modern,  it  is  not  a 
league  or  confederacy,  because  in  all  confederacies,  the  acts 
of  the  federal  head  bear  upon  States,  and  not  upon  individu- 
als,. Front  the  celebrated  Achaean  League,  in  which,  for 
upwards  of  a century,  the  Grecian  States  confederated  against 
their  powerful  neighbors,  until  the  time  of  the  Confederation  of 
the  American  States,  we  find  nothing,  which,  as  to  its  spirit, 
principles,  or  form,  can  bear  any  thing  like  analogy  to  our 
own  glorious  Constitution.  It  is  a Constitution,  sui  generis, 
adapted  to  a state  of  society  and  things,  which  never  before 
did  exist,  and  probably  never  will  again  occur  in  this  world. 
It  is  an  anomaly  in  the  history  of  Governments.  It  is  not  a 
simple,  but  a compound  government.  It  is  federal,  and  it  is 
consolidated.  It  is  made  up  of  so  many  small  governments, 
all  revolving  round  one  great  sovereignty,  in  each  of  which, 
ttie  people  are  the  fountain  of  all  power,  and  each  of  which  is 


vex  supreme,  as  to  the  purposes  for  which  each  was  design- 
ed. The  whole  fabric  is  so  tastefully  wrought,  so  beautiful- 
ly contrived,  and  the  parts  so  admirably  fitted  and  arranged, 
that  whilst  it  forms  a perfect  union,  “ establishes  justice,  in- 
sures domestic  tranquillity  amongst  the  States,  promotes  the 
general  welfare,  and  secures  the  blessings  of  liberty  to  all,” 
it  at  the  same  time  secures  to  each  particular  State,  in  which 
the  people  are  again  supreme,  every  right  of  sovereignty, 
which  is  necessary  to  be  exercised  for  the  internal  order,  pros- 
perity, and  safety  of  its  inhabitants.  Such  is  this  stupendous 
work  of  human  wisdom — the  Constitution  of  the  United 
States. 

That  the  State  sovereignties  were  not  destroyed,  but  only 
limited  by  the  new  Constitution,  appears  to  have  been  the 
sense  of  the  Convention  itself,  who  framed  it.  In  the  letter, 
which  General  Washington  was  directed  to  transmit  to 
Congress,  by  the  unanimous  order  of  the  Convention,  there 
is  this  passage,  “It  is  obviously  impracticable  in  the  Federal 
Government  of  these  States,  to  secure  all  rights  of  indepen- 
dent sovereignty  to  each,  and  yet  provide  for  the  common 
interest  and  safety  of  all.  Individuals  entering  into  society, 
must  give  up  a share  of  liberty,  to  preserve  the  rest.” 

This  apology  of  the  General  Convention,  that  «f/the  rights 
of  sovereignty  could  not  be  preserved  to  the  States,  implies 
most  strongly , that  in  their  view,  many  were  retained.  In 
the  same  chapter  of  the  i Federalist / which  I have  already 
alluded  to,  there  is  the  same  admission.  Although, in  most  of 
(lie  examples  of  other  confederacies,  “ the  system  has  been 
so  dissimilar  from  that  under  consideration,  as  greatly  to 
weaken  any  influence  concerning  the  latter,  from  the  fate  of 
the  former  ; yet,  as  the  States  will  retain,  under  the  proposed 
Constitution,  a very  extensive  portion  of  active  sovereignty , 
the  influence  ought  not  to  be  wholly  disregarded.”  From 
opinions,  entitled  to  so  much  weight,  and  all  of  them  express- 
ed too,  after  the  Constitution  was  finished,  and  before  any 
amendments  were  proposed  by  the  States  ; let  us  again  recur 
to  the  two  memorable  amendments,  already  quoted  in  a for- 
mer number.  It  is  in  these  amendments,  that  the  reserved 
power  of  the  States  is  secured.  This  part  of  the  Constitu- 
tion, is  the  rock,  upon  which  each  State  has  deposited  its 
first,  and  most  valuable  right  of  self-govei  nment,  in  matters 
which  peculiarly  concerned  itself,  and  no  other  State, 


53 

I have  dwelt  upon  this  topic,  because  I have  deemed  it  im- 
portant to  press  it  upon  the  minds  of  my  readers,  that  the  States 
are  still  free,  sovereign,  and  independent,  as  to  every  object  of 
internal  polity  and  government,  and  that  the  principles,  which, 
according  to  Vattel,  apply  to  any  independent  State  or  Na- 
tion, as  to  the  duty  it  owes  itself,  applies  to  South-Carolina, 
in  the  present  question,  in  the  fullest  extent : and  hence  I es- 
tablish, that,  as  by  the  law  of  nations,  a nation  has  a right  to 
do  any  thing  for  its  self-preservation,  so  South-Carolina  has 
the  right  to  pass  the  law  under  which  Elkison  has  been  ar- 
rested. But,  whether  she  be  sovereign,  or  whether  she  be 
not,  it  is  certain,  that  among  the  powers  reserved  to  the  peo- 
ple, was  the  inherent  right  in  every  State,  to  take  care  of  it- 
self. That  South-Carolina,  therefore,  in  excluding  from  her 
limits  a free  colored  population,  is  only  exercising  one  of  the 
many  undefined  powers,  reserved  to  the  States,  by  the  Con- 
stitution. There  is  one  part  of  the  Constitution,  which  I 
think  very  applicable  to  the  present  discussion.  In  the  4th 
section  of  the  4th  article,  it  is  provided,  that  the  United  States, 
as  a matter  of  course,  is  to  protect  each  State  against  inva- 
sion ; but  not  against  domestic  violence  in  any  State,  until 
an  application  be  made  by  the  State  Legislature,  or  by  the 
Executive,  if  the  Legislature  cannot  be  convened.  Here  then 
it  appears,  that  the  putting  down  domestic  violence,  properly 
belongs  to  the  States,  and  not  to  Congress.  It  Is  probable, 
that  this  stipulation  was  insisted  on,  with  a viewtothe  Southern 
States,  those  being  the  only  States,  in  which  a danger  of  this 
nature  was  most  likely  to  occur.  But  how,  I ask,  is  a State, 
to  guard  against  domestic  violence,  if  she  is  not  to  be  the 
sole  and  sovereign  judge,  as  to  the  means  which  are  best 
adapted  to  that  end.  If  the  exclusion  of  a free  colored  popu- 
lation of  other  States,  or  Countries,  be  notone  of  the  acknow- 
ledged means  of  warding  off  this  species  of  danger,  then  there 
is  no  occasion  to  think,  or  talk,  or  write  more  on  the  subject. 
To  lay  us  under  an  obligation  of  guarding  against,  or  potting 
down  domestic  violence,  and,  at  the  same  time,  to  deprive  us 
of  the  precautionary  means,  which  we,  who  are  the  best 
judges,  shall  deem  proper  to  resort  to,  is  to  cast  a reflection 
upon  the  great  men  who  framed  the  Constitution,  which  they 
do  riot  merit. 


5* 


54 


KTO.  12. 

The  Judge  in  his  opinion  says,  that  the  power  given  to 
Congress  by  the  Constitution,  is  “ to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  and  with 
the  Indian  tribes;”  and  he  triumphantly  asks  the  question — 

“ If  Congress  can  regulate  commerce,  what  commerce  cun  it 
not  regulate  ?”  I have  answered  in  my  two  first  numbers, 
that  they  cannot  so  regulate  commerce  by  treaty,  as  to  inter- 
fere with  the  rights  secured  by  the  Constitution  to  any  other 
branch  in  the  government,  or  to  the  states  respectively.  I 
have  specified  some  of  the  cases,  in  which  such  a treaty 
would  be  void,  I now  repeat  it  would  be  void,  if  the  treaty 
were  to  permit  foreigners,  to  import  their  goods  into  some 
ports  onhigher  or  smaller  imposts, than  others.  It  would  be 
void  if  the  treaty  were  to  give  any  nation,  the  liberty  of 
bringing  slaves  into  our  port.  I think  if  in  answering  the 
Judge’s  question,  I can  name  only  one  case,  in  which  com- 
merce cannot  be  regulated  at  pleasure,  in  a treaty,  his 
triumph  is  at  an  end.  I trust  I have  given  two  very  satisfac- 
tory cases. 

I now  proceed  to  show,  that  the  arrest  of  colored  seamen 
in  British  ships  is  not  an  interference  with  the  liberty  of 
commerce  granted  by  the  treaty.  The  words  of  the  Coven- 
tion  are,  “There  shall  be  between  the  United  States  of  Ame- 
rica, and  all  the  territories  of  his  Britannic  Majesty  in 
Europe,  a reciprocal  liberty  of  commerce.  The  inhabitants 
of  the  two  countries  respectively,  shall  have  liberty,  freely 
and  securely  to  come  with  their  ships  and  cargoes,  to  all  such 
places,  ports  and  rivers,  in  the  territories  aforesaid,  to  which 
other  foreigners  are  permitted  to  come  ; to  enter  into  the 
same,  and  to  remain  and  reside,  in  any  parts  of  the  said  ter- 
ritories respectively ; also  to  hire  and  occupy  houses,  and 
ware-houses  for  the  purposes  of  commerce;  and  generally 
the  merchants  and  traders  of  each  nation  respectively,  shall 
enjoy  the  most  complete  protection  and  security  for  their 
commerce,  but  subject  always  to  the  laws  and  statutes  of 
the  iwo  countries  respectively.”  The  difference  between, 
this  article,  and  that  in  Jay’s  treaty,  is,  that  in  the  latter,  « 


55 

liberty  of  li  commerce  and  navigation ” is  agreed  on, 
whilst  in  the  present  treaty,  the  word  “ navigation ” is  omit- 
ted. Another  difference  is,  that  in  this  treaty,  the  liberty  of 
ingress  is  to  those  places  only,  to  which  other  foreigners  are 
permitted  to  come.  In  Jay’s  treaty  the  ingress  is  unlimited. 
In  every  other  respect  the  sense  of  the  two  articles  is  the 
same. 

Some  persons  may  deem  these  differences  to  be  immaterial. 

I however  think  otherwise.  That  both  articles  were  before 
the  commissioners  is  evident,  from  the  words  being  the 
same,  excepting,  where  by  avoiding  surplus  words, 
improvement  seemed  necessary.  What  could  be  meant 
by  the  omission  of  the  word  “ navigation ,”  in  the 
present  treaty  ? The  Judge  may  say,  that  it  was  surplus- 
sage.  But  such  is  not  the  fact.  Commerce  and  navigation, 
are  nots  ynonimous  terms.  The  two  words  have  definite,  and 
at  the  same  time  distinct  meanings.  Commerce  in  its  usual 
sense,  is  restricted  to  an  intercourse  between  one  nation  and 
another,  for  the  purpose  of  exchange  of  commodities.  Na- 
vigation u is  the  mode  by  which  vessels  are  to  be  conducted 
from  one  port  to  another,  in  the  safest,  shortest  and  most 
commodious  way.”  Navigation , it  is  true,  is  incident  to  com- 
mercial relations  so  far,  that  commerce  cannot . be  carried  on 
without  ships.  But  it  may  be  easily  conceived,  that  an  un- 
limited liberty  of  commerce  may  be  stipulated  for,  and  yet 
an  unlimited  liberty  of  navigation  not  be  intended.  The  in- 
tercouse by  ships,  is  not  to  be  conducted,  so  as  to  be  altoge- 
ther commodious  to  one  party,  and  to  the  other,  to  be  pro- 
ductive of  inconvenience,  which  might,  by  some,  be  thought 
to  be  the  case,  where  an  unlimited  liberty  of  navigation  is 
stipulated  for.  But  a general  liberty  of  commerce,  certainly 
gives  no  right  to  one  party,  to  make  the  mode  of  navigating 
his  vessels  in  a way  very  disagreeable  to  the  other.  It 
merely  gives  such  rights  of  navigation,  as  are  necessarily 
incident  to  commerce.  Might  not  this  have  been  the  view, 
with  which  the  alteration  was  made.  There  was  certainly 
some  reason  for  it,  and  the  above  is  as  probable,  as  any  other 
which  might  be  given. 

Again  : by  the  present  treaty,  all  places,  as  to  ingress,  are 
excepted,  which  to  which  other  foreigners  are  not  permitted 
to  come.  This  stipulation,  as  I have  said,  was  not  in  the 


56 

old  treaty.  It  may  be  said,  that  this  means,  that  neither 
nation,  should  be  permitted  to  trade  with  any  port  or  colony 
of  the  other,  from  which  foreigners  generally  are  excluded — 
Admitted  ; but  it  also  has  another  meaning,  more  definite 
than  the  above.  It  is,  that  a British  inhabitant,  shall  come 
for  the  purpose  of  commerce,  to  such  places  only  in  the  ter- 
ritory of  the  other,  to  which  other  foreigners  are  permitted 
to  come.  The  words  are,  the  inhabitants  of  the  two  coun- 
tries respectively,  shall  have  liberty  to  come,”  &c.  In  the 
clear  sense  of  this  article,  the  exclusion  is  confined  to  those 
who  come  with  or  within  the  ships.  Now,  if  I can  shew,  that 
at  the  time  of  making  this  treaty,  which  was  in  1815  (renew- 
ed in  1818)  South-Carolina  was  a place,  to  which  no  in- 
habitant of  a foreign  country  could  come,  if  he  were  but  a 
free  person  of  color ; then,  most  clearly,  an  inhabitant 
of  England,  who  is  a man  of  color,  cannot  be  admitted ; for 
the  treaty,  only  gives  British  inhabitants  ingress  where 
foreigners  generally  have  ingress.  By  an  act,  then,  of  this 
state,  passed  on  the  20th  December,  1800,  which  is  fifteen 
years  before  the  present  treaty,  it  is  declared,  that  it  shall 
not  be  lawful  for  any  free  negro,  or  mulatto,  to  enter 
into  the  state,  after  the  passage  of  the  act,  by  land  of 
by  water,  under  pain  of  being  sold  as  a slave.  This  act  was 
made  perpetual  by  the  act  of  the  17th  December,  1803,  and 
it  is  no>v  in  force,  excepting  by  an  act  of  December  1820,  an 
exception  was  made  as  to  seamen.  The  act  of  1822,  takes 
off  again  the  exception  as  to  seamen,  and  varies  the  mode  by 
which  such  persons  are  to  be  dealt  with,  who  do  enter  the 
state ; but  it  does  not  interfere  further  with  the  act  of  1 820. 
Thus,  then,  it  appears,  that  the  exclusion  of  all  foreign 
persons  of  color  from  South-Carolina,  excludes  within  the 
strict  sense  and  meaning  of  the  treaty,  British  people  of 
color,  for  they  can  be  admitted  only,  where  others  are  ad- 
mitted. The  Judge  may  say,  this  is  taking  the  treaty  in  its 
strictest  sense.  I would  ask,  which  construction  is  most 
rational,  that  which  I have  just  given,  or  the  construction  of 
Judge  Johnson,  that  under  the  power  of  Congress  to  “ regu- 
late commerce,”  she  may  give  the  right  by  treaty,  to  any  na- 
tion, to  fill  our  land  with  free  negroes,  mulattoes  and  mesti- 
zoes, from  all  parts  of  the  world  ? 

I will  not  dwell  longer  upon  these  two  topics,  but  proceed 
to  my  first  position,  in  this  number,  namely:  that  the  ex- 


5? 

elusion  of  colored  seamen,  is  not  an  interference  with  com- 
merce, within  the  meaning  of  those  who  made  the  treaty. 
I think  no  proposition  can  be  more  clear,  than,  that  a liberty 
of  commerce  in  a treaty  does  not  give  one  nation,  a right  so 
to  conduct  it,  as  to  endanger  the  peace,  and  quiet  of  the 
other.  All  that  is  meant  by  a liberty  of  commerce,  is,  that 
it  is  to  be  the  subject  to  no  unnecessary , or  capricious  re- 
straint. There  must  be  no  such  serious  molestation  or  hin- 
drance, as  will  deprive  the  party,  of  any  of  the  substantial 
benefits  of  the  trade.  It  this  moment  occurs  to  me,  that  in 
Jay’s  treaty,  the  liberty  was,  to  come  with  their  ships  and 
cargoes,  “ without  molestation  or  hindrance, which  words, 
seem  to  be  omitted,  in  the  present  convention,  as  through 
abundant  caution.  But,  be  this  as  it  may,  nothing  else,  is 
certainly  meant,  by  a liberty  of  commerce,  than  that  it 
should  be  carried  on  without  unnecessary  restraint.  To  say 
otherwise,  would  be  to  furnish  nations,  with  causes  of  war* 
every  day  in  the  year,  and  to  the  British  particularly,  a cause 
of  war  would  arise,  whenever  our  quarantine  regulations 
are  enforced  against  their  vessels.  These  are  restraints,  not 
imposed  by  the  general  government,  but  by  the  States. — 
Though  by  an  Act  of  Congress,  the  President,  is  authorized, 
to  order  the  revenue  officers,  and  officeis  commanding  forts, 
and  revenue  cutters,  to  aid  in  the  execution  of  quarantine  and 
health  laws  of  the  State ; yet  this  circumstance,  does  not 
make  those  laws,  the  acts  of  the  general  government : but 
admit,  that  the  detaining  of  a vessel  under  the  guns  of  our 
Fort  Johnson,  is  a government  act ; yet  surely,  imprison- 
ment in  the  state  prison  at  New-York,  on  a charge  of  felony, 
under  their  health  laws,  or  the  recovery  of  heavy  penalties 
under  our  act,  for  a violation  of  these  laws,  is  not  an  act  of 
the  general  government.  These  are  the  local  regulations  of 
the  two  States.  The  idea,  that  a liberty  of  commerce  gives 
one  party  a right  to  carry  it  on  as  he  pleases,  without  con- 
sulting the  convenience  of  the  other  party,  is  absurd.  All 
restraints,  which  are  indispensable  to  the  quiet  and  good  or- 
der of  the  place,  in  which  it  is  carried  on,  must  be  submitt- 
ed to.  If  British  ships  were  navigated,  entirely,  by  persons 
of  color,  then  as  this  would  be  a very  serious  restraint  upon 
the  commerce,  to  take  away  her  seamen,  there  might  be 
some  ground  to  say,  that  this  was  an  interference  with  com- 


58 

rnerce,  within  the  meaning  of  the  treaty.  But  when,  not 
one  in  one  hundred  of  her  seamen,  is  black,  to  forbid  the 
ingress  of  these  few,  is  not  denying  to  her,  a liberty  of  com- 
merce, within  the  meaning  of  the  convention.  If  no  inter- 
ruptions of  any  kind,  are  ever  to  be  offered  to  trade,  the 
stipulations  of  treaties,  never  have  been,  nor  ever  will  be  per- 
formed. Violations  must  daily  take  place  in  the  enforce- 
ment, as  I have  said,  of  the  health  laws  of  the  different 
States.  This  is  sometimes  so  serious  an  interruption  to 
commerce,  that  voyages  by  them  are  often  broken  up,  and 
merchants  ruined.  Yet,  as  it  is  not  a capricious,  but  a ne- 
cessary restraint,  to  prevent  cities  from  being  scourged  by 
pestilence,  the  treaty  thereby  is  not  violated,  if  then  Great 
Britain,  submits  to  the  health  laws  of  the  States,  which  some- 
times ruin  her  merchants,  because  she  feels  it  a restraint, 
necessarily  enforced,  will  she,  or  can  she  call  that  an  unlaw- 
ful hindrance,  which  would  guard  the  State  from  insurrec- 
tion, or  domestic  violence.  Is  there  any  comparison  be- 
tween the  two  cases  ? Here  a cook,  or  steward,  is  taken 
from  a vessel,  and  there  is  not  by  this  act,  more  inconveni- 
ence, than  if  the  same  men,  were  confined  by  sickness,  dur- 
ing her  stay  in  port.  Butin  New-York,  if  on  the  arrival 
of  a vessel  from  abroad,  it  is  discovered,  that  during  her  voy- 
age, a man  has  died  on  board  of  fever,  she  is  adjudged  an 
infected  vessel,  her  cargo  which  perhaps  is  perishable,  is 
landed,  fumigated  and  placed  in  warehouses,  the  captain  and 
.crew  confined  to  their  own  narrow  limits  in  the  ship,  or 
within  the  quarantine  bounds ; the  vessel  is  detained  thirty 
or  forty  days,  and  the  voyage  completely  frustrated  and 
ruined.  Now  upon  what  principle  of  reasoning  is  it,  that 
the  law  of  South-Carolina  is  to  be  regarded  by  Great  Britain 
as  an  interruption  to  the  commerce  she  stipulated  for  in  the 
treaty,  and  the  health  laws  of  New-York  are.  to  be  acquies- 
ced in  ? Both  of  these  stand  upon  the  same  footing.  They 
are  both  local,  and  state  regulations.  It  would  puzzle  any 
one  to  give  me  the  answer.  The  state  Act,  then  is  not  such 
an  interference  with  the  liberty  of  commerce  given  by  the 
convention,  as  amounts  to  a violation  of  the  treaty  on  the 
part  of  this  government.  The  commerce  of  Great  Britain 
.is  still  uninterrupted  and  enjoyed  to  its  fullest  extent.  Not 
oae  bale  less  of  Manchester  goods,  or  one  crate  Jess  o£ 


69 

crackery-ware  comes  into  the  United  States  in  consequence 
of  the  operation  of  the  state  Law.  The  shipping  interests 
of  Great  Britain  are  not  affected  by  the  regulations  we  have 
adopted  to  secure  the  quiet  of  the  State.  If  ever  these  essays 
should  come  under  the  eye  of  the  Honorable  Mr.  Canning, 
the  present  Premier  of  England,  I am  confident  he  will 
smile,  at  Judge  Johnson’s  kihd  apprehensions,  lest  the  two 
countries  should  be  embroiled  in  war,  by  the  arrest  of  Elki- 
aon.  What  a thought ! That  such  a country  as  Great  Bri- 
tain, at  whose  helm,  always  stand  the  first  of  her  Statesmen, 
and  which  is  united  to  us  by  so  many  ties  of  kindred,  reli- 
gion, laws,  language  and  interest,  should  go  to  war,  for  the 
sake  of  a few  black  cooks  and  stewards.  Thanks  be  to 
Heaven,  that  Mr  Canning  understands  the  interests  of  Great 
Britain  rather  better,  than  our  Judge  Johnson  does  those 
of  South-Caroiina,  his  flative  state. 


1230.  13. 

I have  shewed  that  the  arrest  of  Elkison  was  not  an  inter- 
ference with  commerce,  within  the  meaning  of  those  who 
made  the  treaty.  I shall  now  briefly,  and  lastly,  maintain 
that  the  state  act,  does  not  interfere  with  the  power  given  by 
the  states  to  Congress  to  regulate  commerce.  As  to  what 
constitutes  the  regulation  of  commerce,  no  two  merchants 
eould  possibly  differ  about  it.  The  regulations  of  commerce, 
embrace,  as  1 conceive,  every  arrangement,  as  to  the  articles 
to,  be  imported  or  exported,  or  as  to  duties  and  imposts,  or 
tonnage  to  be  paid,  or  as  to  the  preference  of  trade  with  this, 
or  that  port  or  colony ; now  crippling  one  branch  of  foreign 
trade  by  high  or  prohibitory  duties,  and  now  encouraging  an- 
other by  light  impositions,  or  by  no  imposts,  and  so  on. 
These  are  the  regulations  of  foreign  commerce ; and  these 
only  were  in  the  contemplation  of  the  states,  when  they  gave 
up  to  the  general  government,  the  iegulation  of  trade.  The 
want  of  some  proper  and  uniform  system,  on  which  to  build 
commercial  regulations  for  the  states,  was  one  of  the  first 
evils  felt  by  the  people  after  the  war.  Under  the  confedera- 
tion, different  states  laid  on  different  imposts  and  tonnage, 


6d 

and  when  restrictions  were  resorted  to  abroad,  there  was  no- 
retaliating  effectually  by  counter  regulations.  The  conse- 
quence was,  that  there  was  a general  decline  of  trade  and 
public  credit  in  the  states.  If  there  be  a fact  which  stands 
undisputed  in  the  history  of  the  United  States,  it  is  this  fact, 
and  I appeal  to  every  historian  for  the  truth  of  it : That  the 
want  of  uniformity  as  to  imposts  and  tonnage  in  the  different 
states,  was  the  principal  inducement  for  the  states  to  form  a 
new  constitution.  The  states  were  at  different  times  called 
upon  to  “ enlarge  the  powers  of  the  confederation,  and  to  en- 
trust them  with  the  regulation  of  commerce  even  for  a limit- 
ed number  of  yeai‘3.”  But  as  some  complied  with  the  call, 
and  others  fettered  their  grants  with  improper  conditions,  a 
unifotm  system  could  never  even  be  formed  or  agreed  on.  It 
is  believed  by  most  people,  that  could  there  have  been  only 
unifoimity  as  to  the  regulations  of  trade,  under  the  old  con- 
federation, our  present  happy  constitution  had  not  been  form- 
ed. Who  then  can  believe  that  when  the  great  object  of  all, 
wras  to  correct  an  evil,  which  at  that  day  distressed  and  per- 
plexed the  people  more  than  any  thing  else,  namely  the  want 
of  concert  among  the  states,  on  this  subject,  and  of  uniformi- 
ty in  their  imposts  and  tonnage,  that  it  was  ever  intended  that 
the  right  to  admit  a class  of  people,  dangerous  to  a particular 
state,  was  ever  included,  as  amongst  the  regulations  of  com- 
merce.— All  that  was  intended  by  the  surrender  of  this  right 
to  Congress,  was,  neither  more,  nor  less,  than  that  some 
common  head  should  so  regulate  the  general  trade  of  the 
country,  that  the  sufferings  which  the  people  experienced 
from  the  obstructions  which  foreign  nations  offered  to  their 
trade,  might  be  at  an  end,  and  that  they  might  thereafter  av.ll 
themselves  of  their  natural  advantages.  Have  not  all  these 
ends  been  answered  by  the  new  constitution,  and  is  it  not 
absurd  to  say,  that  because  a black  or  mulatto  seaman,  here 
and  there  is  taken  from  a foreign  ship,  and  confined  in  jail 
till  she  leaves  the  port,  that  this  state  disputes  with  Congress 
the  power  to  regulate  commerce  ? And  yet  absurd  as  such 
an  idea  is,  it  is  nevertheless  the  extra-judicial  idea  of  Judge 
Johnson. 

There  is  but  one  more  topic  which  I deem  worthy  of  no- 
tice: It  is  that  part  of  the  commercial  convention  which 
states  that  the  reciprocal  liberty  of  commerce  shall  be  “ sub- 


61 

ject  always  to  the  laws  and  statutes  of  the'two  countries  res- 
pectively.” The  Judge’s  construction  is,  that  it  refers  to  the 
laws  of  the  United  States , and  not  to  those  of  the  individual 
states.  I however,  deny  this  construction  as  irrational.  I' 
cannot  believe,  that  the  negotiators  intended  that  the  ingress 
for  the  purposes  of  commerce,  should  be  in  violation  of  the 
local  or  municipal  laws  in  the  states.  As  they  knew,  or 
ought  to  have  known,  that  there  were  regulations  in  the  dif- 
ferent states  which  imposed  some  restraints  upon  commerce, 
namely  their  health  laws  in  particular ; it  is  more  probable 
that  they  meant  local  laws,  than  any  other.  The  conveni- 
ence of  commerce  in  every  part  of  the  globe,  is  made  to  bend 
to  the  police  or  municipal  regulations  of  all  sea-ports. 

How  is  it,  in  a commercial  contract,  between  one  man  and 
another?  Is  not  reference  always  had  to  the  usage  of  trade, 
and  the  particular  usage  is  made  as  much  a part  of  the  con- 
tract, as  if  it  had  been  expressed  in  so  many  words?  So  it  is 
in  all  treaties  between  nations.  Municipal  regulations  which 
are  established  in  the  different  ports,  of  the  parties,  are  as 
much  to  be  respected,  as  if  express  provision  were  made  in 
the  convention,  that  they  should  not  be  put  aside.  If  mu- 
nicipal or  local  laws  were  in  the  views  of  the  parties,  cer- 
tainly then  the  laws  of  the  states  are  principally  embraced 
in  the  proviso,  for  Congress  have  no  municipal  regulations, 
except  in  the  District  of  Columbia. — The  acquiescence  of 
Great  Britain  under  Jay’s  treaty  from  1793  to  1804,  in  not 
bringing  slaves  into  this  port,  when,  by  that  treaty,  she  had 
the  right,  is  conclusive,  that  she  did  not  think  a treaty  para- 
mount to  a local  state  law. 

I will  how  transcribe  some  passages  from  Vattel,  which 
though  they  properly  belong  to  some  of  my  previous  num- 
bers, may,  nevertheless,  be  useful  even  now.  In  treating  of  the 
collision  of  laws  and  treaties,  Vattel  says,  “ When  laws  and 
treaties  happen  to  be  opposed  to  each  other,  the  following 
rules  ought  to  prevail.  We  will  not  speak  of  the  collision 
of  the  law  of  nature  ; this  will,  doubtless,  in  all  cases , have 
the  advantage,  and  must  prevail.  But  where  there  are  laws 
and  treaties  opposed  to  each  other,  and  it  is  impossible  to  ful- 
fil both,  the  following  rules  are  to  be  observed  : 

1.  In  all  cases  where  what  is  permitted,  is  found  incompa- 
tible with  what  is  prescribed,  this  last  has  the  advantage : for 
6 


62 

A mere  permission  imposes  no  obligation ; — to  do  or 
not  to  do  what  is  permitted,  is  left  to  our  will ; we  may 
do  it,  or  we  may  not  do  it,  as  we  please.  But  we  have  not 
the  same  liberty  with  respect  to  what  is  prescribed  by  law. — 
We  arc  bound,  or  obliged  to  do  it. 

2.  In  the  same  manner  the  treaty  which  permits,  ought  to 
yield  to  the  law  which  forbids.  For  the  prohibition  should 
be  obeyed. 

3.  Every  thing  being  otherwise  equal,  the  law  or  treaty 
which  ordains,  yields  to  the  law  or  treaty  which ybriiWs. 

4.  What  will  suffer  no  delay,  ought  to  be  preferred  to 
what  may  be  done  at  another  time;  for  this  is  a method  of 
reconciling  every  thing,  and  fulfilling  both  obligations. 

5.  When  two  duties  are  found  incompatible,  the  most  con- 
siderable or  urgent  merits  the  preference.  This  rule  is  so 
plain  that  it  needs  no  proof : this  is  the  grand  rule  in  their 
opposition  as  it  merits  most  attention. — Vattel , Book  2 d. 
chap.  17.  Sec.  311  to  319. 

I have  now  given  my  ideas  as  to  the  constitutionality  of  the 
State  Act,  to  the  best  of  my  abilities,  and  1 trust  that  many 
of  my  readers  will  be  satisfied  with  the  remarks  I have  sub- 
mitted. Such  as  are  not  wholly  satisfied,  I must  entreat,  not 
to  infer  from  any  suppossed  failure  on  my  part,  that  the  sub- 
ject is  not  susceptible  of  stronger  and  better  views.  But 
above  all,  I entreat  them  not  to  believe,  that  1 rely  solely  on 
the  few  last  positions  which  I have  taken.  The  great  ground 
upon  which  the  State  Act  is  to  be  sustained  is,  that  if  the 
treaty  with  Great  Britain  can  be  so  construed  as  to  give  her 
colored  seamen  from  abroad,  a right  to  enter  this  port,  con- 
trary to  the  will  of  our  Legislature,  such  a treaty  interferes 
with  the  most  important  of  all  the  inherent  rights  secured 
and  reserved  to  her  by  the  Constitution  of  the  United  States, 
and  is  therefore  absolutely  null  and  void.  When  the  ques- 
tion which  involves  all  that  is  dear  or  valuable  to  this  State, 
comes  to  be  discussed  before  the  Supreme  Tribunal  of  the 
Union,  by  men  far  more  competent  than  the  writer  of  these 
numbers,  let  us  my  fellow-citizens,  hope  and  trust,  that  not- 
withstanding one  Judge  from  our  State  has  unnecessarily 
prejudged  the  question,  that  the  decision  will  still  be  for 
South-Carolina. 


63 

As  to  Judge  Johnson — if  he  thinks  that  these  numbers 
are  written  from  jealousy  of  him,  or  from  malice,  or  any  bad 
motive,  he  is  exactly  in  the  error  into  which  he  so  often  pre- 
cipitates himself  in  his  newspaper  controversies.  Caroli- 
niensis  is  not  ashamed  of  his  motives.  He  regards  the  Judge 
as  a person  who  may  hurt  this  State  seriously,  if  he  is  not 
made  to  feel  smartly  every  time  he  assails  the  public.  As  to 
the  feelings  of  this  writer,  they  are  strong  against  him — but 
they  are  the  highly  indignant,  as  he  trusts  they  ought  to  be, 
the  honest  feelings  of  every  man  who  loves  the  land  and  the 
laws  which  prdtect  him. — Had  Judge  Johnson  not  injured 
the  State,  Caroliniensis  had  never  written.  Had  Judge 
Johnson  entered  into  the  sensibilities  of  his  fellow  men,  in 
the  time  of  their  inquietude,  and  there 

“ Have  garner’d  up  his  heart 

Where — either  he  must  live  or  bear  no  life, 

The  fountain  from  the  which,  his  current  runs,  or  else 
dries  up," 

this  opinion  of  his,  probably,  had  not  been  given,  and  these 
essays  had  not  appeared.  But  when,  against  alLad vice,*  he 
will  put  forth  a publication  which  serves  only  to  encourage 
the  colored  population  of  the  north  to  persevere  in  coming 
here,  contrary  to  our  safety,  or  to  furnish  pretexts  for  unprin- 
cipled Editors  to  vilify  the  South  ; when  his  opinions  so  un- 
necessarily, nay  wilfully  obtruded  upon  the  public,  can  only 
be  used  in  the  other  States. 

. .,  “ Asa  cistern  for  foul  toads, 

To  knot  and  gender  in  ! Turn  thy  completion  there, 
Patience," 

and  say  whether  this  is  to  be  submitted  to  without  a murmur. 
Scarcely  fourteen  months  have  elapsed  since  Judge  Johnson, 
by  his  celebrated  anonymous  essay  “ on  the  effects  of  popu- 
lar excitement,”  held  up  his  native  State  to  the  greatest  pos- 
sible odium.  There  was  then  a simultaneous  burst  of  indig- 
nation against  the  man,  who  could  write  such  an  essay  , and 
the  printer,  to  avoid  the  weight  of  obloquy  which  was  fast 
accumulating  upon  him,  gave  up  Judge  Johnson  as  the  au- 
thor.— The  impression  that  was  then  made  never  can  be  ef- 
faced from  our  memories.  Can  any  excuse  be  made  for  him 
who  publishes  what  must  disgrace  his  own  country  abroad? 

• Even  Ei.kison’s  Counsel  used  his  influence  (in  vain)  to  dissuade 
tha  Judge  from  publishing  his  opinion 


64 

A second  time  he  tomes  forward,  and  he  reflects  upon  the 
sountry,  by  his  perverted  views  of  our  legislation  and  pro- 
ceedings. His  opinion  is  on  the  wings  of  the  four  winds,  to  in- 
jure the  character  of  the  State.  The  poison  of  this  com- 
pound of  oblique  views,  and  of  extra-judicial  mis-statements, 
is  now  swiftly  coursing  its  way  from  Georgia  to  New-Hamp- 
shjre,  and  from  the  Atlantic  to  the  Missouri. 

“ Such  soon  speeding  geer 

As  will  disperse  itself  through  all  the  veins  of  this 
great  Confederacy.” 

Every  feeling  which  jealousy  can  awaken,  or  affected  phi- 
lanthropy inspire,  will  be  brought  to  bear,  or  is  now  bearing, 
upon  the  character  of  our  Legislature.  Obloquy  and  re- 
proach have  already  been  our  portion  abroad.  The  Judge 
will  have  abundant  proofs  of  this,  by  referring  to  the  columns 
of  some  of  the  Northern  journals.  He  will  there  see  the 
blessed  fruits  of  this  opinion,  so  indiscreetly  promulgated. 
He  will  there  find  how  seriously  the  reputation  of  his  country 
is  affected  in  the  view  of  those  who  triumphantly  quote  it. 

“ Oshame!  the  thought  consumes  me, 

To  see  a man  like  this. 

Borne  on  our  shoulders  to  his  present  fame.” 

To  see  him  at  such  a pnoment  as  this,  step  out  as  the  vo~ 
luntary  champion  against  our  inherent  rights , nay,  the  rights 
and  the  interests  of  his  fellow-4ownsmen.  Could  I ever  build 
up  a reputation  for  myself,  that  could  place  me  upon  the 
Bench  of  the  United  States;  could  I but  fill  such  a large 
space  in  the  eye  of  my  fellow-citizens,  clarum  et  venerabile 
nomen  ! could  I but  believe,  that  I had  “ assiduously  labored 
to  rear  the  pyramid  of  my  country’s  glory,  or  could  I boast 
of  some  forty  winters  as  spent  in  the  service  of  the  people,” 
next  to  the  consciousness  of  having  supported  the  dignity  of 
my  station,  and  that  I had  never  done  an  act  which  could 
cause  the  dilapidation  of  mine  own  honors : next  to  these 
would  I value  beyond  all  treasure,  the  confidence  and  the  love 
of  my  fellow-townsmen  and  countrymen.  What  could  avail 
all  my  honors,  if  I could  not  live  an  unstained  husband  to 
my  sweet  country’s  sympathies. 

I have  now  done : and  if  Judge  Johnson  will  hereafter 
keep  his  sentiments  on  late  occurrences  to  himself,  and  not 
trouble  the  public  with  them,  neither  he  nor  the  public  shall 
ever  again  hear  from  C AROLINIENSIS 


■* 


SINCE  the  foregoing  Numbers  were  put  to  press,  it  has 
been  thought  adviseable  to  add  the  following,  as  hoeing 
■ft  very  important  bearing  on  tte  subject* 


$$UO:=e*?0UUiro0i0t 


V 


wo.  i. 

PHILONIMUS  admits,  that  the  State  Act  of  1822,  is 
constitutional,  so  far  as  it  affects  Northern  seamen,  but 
denies  the  same  efficacy  to  the  Act,  when  British  seamen  are 
/■concerned.  Surely,  this  said  Philonimus , in  the  extension 
of  his  philanthropy,  must  be  disposed  to  concede  to  the  Brit- 
ish nation,  what  is  expressly  denied  by  that  nation  to  our  own 
citizens,  or  the  citizens  of  other  countries.  In  June,  1822,  the 
Alien  Bill  was  revived  by  Parliament.  Sir  James  Mackin- 
tosh, in  opposing  that  Bill,  objected  to  the  power  exercised 
by  Parliament,  of  sending  foreigners  out  of  the  country ; but 
in  spite  of  the  arguments,  sarcasm  and  eloquence  of  Sir 
James,  the  Bill  was  passed  by  a large  majority.  Mr.  Plun- 
ket,  who  defended  the  provisions  of  the  Bill,  confidently  as- 
serted, that  “ the  power  of  removing  aliens  from  the  coun- 
try, was  one,  which  had  always  existed.  It  was  founded 
upon  the  right  of  nations,  and  had  been  exercised  by  the  go- 
vernment of  every  nation,  whether  free,  or  despotic.”  u The 
-question,  of  sending  an  alien  out  of  a country,  was  only  a 
question  of  right  and  fitness.”  “ Government  should  always 
have  the  power  to  remove  foreigners,  should  they  become 
obnoxious ; the  more  particularly,  as  there  were  numbers  of 
foreign  emissaries  here,  who  sought  to  poison  the  public 
mind,  and  to  sow  disaffection.”  “ He  would  ask,  were  not 


68 

the  means  then  resorted  to,  necessary  for  the  preservation  of 
the  country  ?”  What  measures  could  be  adopted,  if  this 
country  were  to  become  the  resort  of  the  pestilence  of  other 
countries  ? “ The  object  of  the  Alien  Act  was  to  provide, 
that  the  Government  of  the  country,  if  it  found,  that  the  resi- 
dence of  foreigners  was  dangerous  to  the  peace  and  tran- 
quillity of  the  country,  might  be  empowered  to  remove  them, 
although  they  might  not  be  charged  with  the  commission  of 
any  specific  crime.”  “ The  prerogative  of  the  crown,  in 
this  country,  and  in  every  other,  no  matter  whether  free,  or 
not,  had,  he  apprehended,  always  exercised  that  power.” 

“ This,  said  Mr.  Plunket,  was  not  giving  up  the  Consti- 
tution, or  giving  up  freedom — for  the  same  Constitution  that 
had  given  us  liberty,  had  given  us  the  power  of  preserving 
it.  The  more  free  our  Constitution  was,  and  the  more  un- 
rivalled our  privileges,  so  much  the  more  necessary  it  was, 
tp  guard  and  protect  both.” 

By  these  numerous  extracts,  we  are  taught  the  senti- 
ments of  the  British  government  on  this  subject,  and  can 
it  be  true,  that  this  very  government  would  take  offence, 
at  our  acting  upon  principles,  here  broadly  laid  down  by 
their  own  ministers,  or  may  it  not  happen,  that  the  proud 
and  haughty  government  of  the  “ far-famed  Isles,”  may 
deny  to  the  American  States,  what  it  is  so  resolved  to  ar- 
rogate to  itself.  It  appears,  that  on  the  debate  before  the 
House  of  Commons,  Sir  James  Mackintosh  had  used  ar- 
guments drawn  from  extreme  cases,  similar  to  those  used 
by  Judge  Johnson,  when  he  refers  to  Lascars  and  Nan- 
tucket Indians.  This,  says  Mr.  Plunket,  “ is  another  mis- 
take, into  which  the  gentleman  has  fallen — he  has  stated 
imaginable  mischief,  which  might  arise  from  extreme  cases,  ' 
and  has  argued  upon  those  imaginable  mischiefs,  as  though 
they  had  been  the  end  and  object  of  the  Act.”  It  occurs  to 
me  as  extremely  improbable,  that  the  British  Ministry  should 
even  make  a formal  representation  to  the  United  States  Go- 
vernment on  this  subject.  Elevated  as  that  nation  conceives 
itself  above  all  the  powers  of  the  earth,  it  scarcely  can  con- 
ceive us  so  poor,  so  spiritless,  as  to  submit  to  be  chided,  fa r 
acting  upon  the  very  principles  they  so  openly  proclaim. 


vT\  - ' 


69 


no.  a. 

To  My  first  number,  it  may  be  replied,  there  is  no  doubt, 
the  Parliament  of  Great  Britain,  or  the  Congress  of  the  Unit- 
ed States,  have  a right  to  pass  an  Alien  Bill,  but  the  same 
power  is  not  vested  in  our  State  Legislature — to  this  I an- 
swer : — That  in  the  year  1800,  our  Legislature  passed  a 
Bill,  prohibiting  masters  of  vessels  from  bringing  into  this 
State,  any  free  persons  of  color.  In  1803,  our  ports  were 
opened  to  the  importation  of  slaves,  but  the  provisions  of  the 
Act  of  1 800,  so  far  as  respects  free  colored  persons,  were 
rendered  perpetual ; the  reasons  for  which,  are  familiar  to 
every  one  acquainted  with  the  history  of  those  times.  St. 
Domingo  was  in  possession  of  the  negroes,  and  of  course 
those  negroes  were  free.  Some  of  them  had  gone  over  to 
France  for  education,  and  were  disposed  to  claim  the  same 
privileges  as  the  European  whites— to  mingle  in  our  com- 
merce, navigate  vessels,  and  settle  among  the  people  of  these 
States  for  the  purposes  of  trade  ; one  of  the  principal  chiefs, 
had  some  years  previously,  visited  this  very  State,  on  his 
return  from  France — and  a few  years  afterwards,  a vessel, 
officered  and  manned  by  black  people,  arrived  at  Hartford, 
in  the  State  of  Connecticut.  Among  the  officers,  was  Boyeb, 
now  President  of  Hayti,  a smart,  sagacious,  and  intelligent 
fellow,  well  skilled  to  devise  any  scheme,  or  perpetrate  any 
mischief.  The  Southern  members  in  Congress,  aware  of  our 
danger,  from  the  introduction  of  this  class  of  persons,  suc- 
ceeded in  procuring  the  passage  of  the  following  Law,  by  the 
United  States  Legislature  : — 

The  Act  is  entitled,  “ an  Act  to  prevent  the  importations 
of  certain  persons,  into  certain  States,  when,  by  the  Laws 
thereof,  their  admission  is  prohibited and  passed  Februa- 
ry, 1813. 

Section  1.  “Be  it  enacted,  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of  America,  in  Congress 
assembled,  That  from,  and  after  the  first  day  of  April  next, 
no  master,  or  captain  ol  any  ship,  or  vessel,  or  any  other 


70 

person,  shall  import,  or  bring,  or  cause  to  be  imported,  err 
brought,  any  negro,  mulatto,  or  other  person  of  color,  not  be- 
ing a native,  a citizen,  or  registered  seaman  of  the  United 
States,  or  seamen,  natives  of  countries  beyond  the  Cape  of 
Good  Hope,  into  any  port,  or  place,  of  the  United  States, 
which  port,  or  place,  shall  be  situated  in  any  State,  which  by 
Law  has  prohibited,  or  shall  prohibit,  the  admission  or  im- 
portation of  such  negro,  mulatto,  or  other  person  of  co- 
lor; and,  if  any  captain,  or  master,  aforesaid,  or  any  other 
person,  shall  import,  or  bring,  or  cause  to  be  imported,  or 
brought  into  any  of  the  ports,  or  places,  aforesaid,  any  of  the 
persons,  whose  admission  or  importation  is  prohibited,  as 
aforesaid,  he  shall  forfeit  and  pay,  the  sum  of  one  thousand 
dollars,  for  each  and  every  negro,  mulatto,  or  other  person  of 
color,  aforesaid,  brought,  or  imported,  as  aforesaid : to  be 
sued  for,  and  recovered  by  action  of  debt,  in  any  Court  of  the 
United  States,  provided  always , that  nothing  contained  in 
this  Act,  shall  be  construed  to  prohibit  the  admission  of  In. 
dians.” — 3d  vol.  Laws  of  the  U.  States,  529. 

By  this  Act  of  Congress,  all  State  Laws,  which  shall  pro- 
hibit the  bringing  of  colored  persons  into  the  State,  except 
natives,  citizens,  or  registered  seamen  of  the  United  States, 
or  seamen,  natives  of  countries  beyond  the  Cape  of  Good 
y*  Hope,  or  Indians,  are  made  Laws  of  the  United  States. — 
When,  therefore,  the  Treaty  of  Commerce,  between  this 
country  and  Great  Britain,  subjects  all  the  provisions  of  that 
treaty,  to  the  Laws  and  Statutes  of  the  two  countries,  it  sub- 
jects it  to  the  State  Law  ; because  the  State  Law  is  made  a 
Law  of  the  United  States ; so  that  the  States  may  pass  Alien 
Bills,  so  far  as  colored  aliens  are  the  subjects  of  those  Bills. 
It  will  also  be  perceived,  that  Elkison  has  no  right  to  come 
into  this  State,  by  virtue  of  the  Treaty,  for  Elkison  being  a 
British  seaman,  and  British  seamen  not  coming  under  the 
exceptions  in  the  Act  of  Congress,  he  is  of  course  excluded 
by  that  Act,  which  applies  to  European  and  West-India  co- 
lored seamen,  as  not  being  natives  of  countries  beyond  the 
Cape  of  Good  Hope.  It  will  also  be  perceived,  that  this  Act 
could  not  have  intended  to  apply  to  slaves,  for  two  reasons. 
1st.  It  excepts  natives,  citizens,  and  registered  seamen  of  the 
United  States,  natives  of  countries  beyond  the  Cape  of  Good 
Hope,  and  these  are  never  slaves.  2d.  Because  all  the  Slave 

/ tr & j t-  . 

/ 


71 

Acts,  speak  of  persons  brought  into  the  States  for  sale,  and 
this  Act  makes  no  mention  of  such.  How  then  can  it  be 
pretended,  that  this  State  has  no  right  to  prohibit  the  bring- 
ing in  persons  of  color  from  foreign  countries  ? How  can 
men  dare  to  assert,  that  the  constitutionality  of  our  Law  of 
1822,  cannot  bear  an  argument  ? Who  is  so  rash,  as  not  to 
pause,  before  he  advocates  doctrines  subversive  of  the  rights 
of  the  State,  and  destructive  of  the  property  and  lives  of 
us  all. 


HO.  3. 


Philonimus  has  conceded,  that  the  Act  of  Congress,  pass- 
ed in  1803,  does  sanction,  not  only  existing,  but  future  laws 
of  the  State,  excluding  colored  seamen  of  the  description  of 
Elkison;  but  denies,  that  the  State  Act  of  1822,  is  consti- 
tutional, inasmuch,  as  being  passed  subsequent  to  the  treaty, 
it  of  course  must  yield  to  the  treaty. 

It  will  be  recollected,  that  the  words  of  the  treaty  are — 
u That  the  liberty  of  ingress,  for  the  purpose  of  commerce, 
shall  be  subject  always , to  the  Laws  and  Statutes  of  the  two 
countries  respectively” — now,  that  these  words  relate  to  fu- 
ture, as  well  as  to  Laws  existing  at  the  time  of  the  treaty, 
Philonimus  himself  admits,  for  in  one  of  the  numbers,  in  an- 
swer to  “ Caroliniensis,”  we  find  the  following  expressions  : 
u What  doubt  can  be  entertained,  that  the  contracting  par- 
ties to  the  Commercial  Convention,  have  retained  the  right, 
to  pass  what  Navigation  Laws  they  please.  The  only  obli- 
gation they  have  laid  themselves  under,  is,  to  extend  to  each 
other  all  the  advantages  of  the  most  favored  nation.” — Thus 
it  is  fully  conceded,  that  the  United  States,  as  one  of  the  con- 
tracting parties,  could  pass  any  navigation  laws  subsequent 
to  the  treaty  without  any  violation  of  the  treaty ; but  through- 
out the  whole  of  Judge  Johnson’s  opinion,  it  is  taken  for 
granted,  that  the  regulation  of  seamen  is  a regulation  of  com- 
merce and  navigation  ; the  conclusion  is,  therefore,  irresis- 
tible, that  the  United  States  can  regulate  the  admission  of 
British  seamen  without  in  the  least  infringing  upon  the  trea- 
ty. “ Does  it  follow  from  this,”  says  Philonimus,  “ that  the 


I 


72 

States  shall  have  the  power  to  pass  navigation  laws  for  the 
two  contracting  parties  ? to  impose  upon  them  a rule  as  to 
the  seamen  they  shall  employ.”  Here  we  find  two  positions 
are  distinctly  yielded,  by  Philonimus. 

1st.  That  the  United  States  can  pass  future  navigation 
laws,  without  violating  the  treaty. 

2dly.  That  a law  regulating  seamen  is  a navigation  law  ; 
the  inference  then  is  irresistible ; that  if  the  State  law  of 
1822,  had  been  passed  by  Congress  it  would  n|t:  have  in- 
fringed upon  the  treaty  of  1818. 

Now  I ask  whether  the  Act  of  1822  is  not  made  an  Act 
of  Congress  by  the  United  States  law  of  1803  ? and  if  it  be 
so,  must  it  not  be  conceded,  that  its  passage  by  our  Legisla- 
ture, is  not  a violation  of  the  treaty  of  commerce  between 
Great  Britain  and  the  United  States  ? And  that  it  is  so  Phi- 
lonimus has  already  admitted,  in  his  answer  to  my  first  and 
second  number,  in  which  he  grants  that  “ the  Act  of  Con- 
gress relied  on  does  sanction,  not  only  existing  but  future 
laws  of  the  State,  excluding  colored  seamen  of  the  descrip- 
tion of  Elkison.” 

The  whole  of  the  argument  may  be  summed  up  thus — 

1st.  The  United  States  may  pass  navigation  laws  without  ' 
infringing  the  treaty! 

A law  regulating  seamen  is  a navigation  law.  Therefore, 
the  United  States  can  regulate  seamen,  without  infringing 
the  treaty. 

2d.  The  State  Act  of  1822,  regulating  seamen,  is,  by  act 
of  Congress,  made  an  United  States  law  ; but  seamen  may 
be  regulated  by  an  United  States  law,  without  infringing  the  " 
treaty.  Therefore,  the  State  Act  of  1822,  is  not  an  infringe- 
ment of  the  treaty. 

As  truth  is  my  aim,  I have  endeavoured  to  exclude  from 
this  argument  whatever  was  calculated  to  mislead  myself  or 
my  readers  ; and  unless  I have  misquoted  from  former  num- 
bers of  Philonimus,  my  conclusion  is  a legitimate  deduction 
from  undisputed  premises.  Never  to  go  beyond  the  case 
presented,  is  a rule  which  I have  long  endeavoured  to  act  up- 
on, and  as  the  one  before  the  public  is  that  of  a British  sea- 
men, it  is  unnecessary  to  consider  the  operation  of  the  Act 
of  Congress  of  1803,  upon  Northern  seamen,  it  is  only  ne- 
cessary to  remark,  that  a law  of  Congress  may  confer  upon 


73 

a State  a right  not  previously  possessed,  but  never  can  di- 
gest a State  of  inherent  or  pre-existing  rights.  Neither  can 
the  opinion  of  Congress,  respecting  our  right  to  exclude  nor- 
thern seamen,  be  gathered  from  the  Act  of  1 803  ; for  the  ob- 
ject of  that  Act  was  to  make  it  obligatory  on  the  United 
States  revenue  officers  to  assist  the  State  in  executing  the 
law,  so  far  as  it  respects  British  seamen,  though  it  might  not 
have  been  willing  to  assist  in  executing  any  laws  interfering 
with  those  from  the  north.  Animated,  and  protracted, 
and  vexatious,  have  been  the  discussions  on  the  constitution- 
ality of  our  State  law  ; much  has  been  written,  which  can 
have  no  other  interest  but  what  is  derived  from  the  excite- 
ment of  the  moment — much,  that  will  cease  to  be  remem- 
bered, when  the  summer  is  ended,  and  the  winter  bra- 
ced us  up  once  more  for  active  employments  ; but,  after  all, 
it  must  be  confessed,  that  from  so  much  collision,  light  has 
been  struck,  and  truth  revealed. 


PHILO-CAROLINIENSIS. 


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M Southerner, 


A VERY  important  Act  of  Congress  has  been  brought 
before  the  public  eye  by  Philo-Caroliniensis,  which,  it  seems 
had  not  been  noticed  in  the  discussion  of  Elkison’s  case. 
The  new  view  afforded  by  the  discovery  of  this  Act  of  Con- 
gress is  to  my  mind,  conclusive ; and  I beg  to  call  the  atten- 
tion of  my  fellow-citizehs  particularly  to  it.  Elkison’s  claim 
is  founded,  as  the  Judge  has  decided,  upon  our  treaty  with 
Great  Britain.  To  this  claim  it  was  (amongst  other 
grounds)  objected  that  by  the  treaty  itself,  its  provisions 
were  to  be  subject  to  the  municipal  laws  of  the  States.  The 
reply  of  the  opposite  counsel  was,  that  the  laws  embraced  by 
the  proviso  in  the  treaty,  were  not  the  municipal , or  local 
laws  of  the  States,  but  simply  the  laws  of  Congress.  The 
Judge  himself,  could  not  then  doubt,  but  that  if  Congress 
had  passed  an  alien  bill,  that  the  provisions  in  the  treaty, 
must  be  subject  to  such  a bill.  At  this  moment,  notwith- 
standing this  treaty  gives  to  every  American  the  right  of  go- 
ing to  and  of  residing  in  Great  Britain  for  the  purposes  of 
commerce,  the  government  there  under  their  act  of  Parlia- 
ment of  last  year,  can  order  off  any  of  our  citizens  without 
any  trial,  and  forbid  their  return  under  pain  of  death  or 
transportation  to  the  South  Seas.  In  doing  this  Judge 
Johnson  could  not  pretend  to  say,  that  England  violates 
the  treaty,  because  the  treaty  itself  is  made  subject  to  the 
laws  and  statutes  of  the  two  countries.  Upon  the  same 
principle,  if  the  United  States  should  interdict  the  negroes 
or  mulattoes  of  the  British  territories  from  coming  into  our 
ports,  our  engagements  would  not  thereby  be  violated.  In 
both  instances,  both  countries  would  act  precisely  on  the 
same  principle  of  exclusion,  all  such  cases  falling  within  the 
clear  intent  and  meaning  of  the  proviso  in  the  treaty. 


The  Judge  himself,  was  so  certain  that  there  was  no  Act 
of  Congress  which  could  possibly  bear  upon  Elkison,  that 
he  uses  these  words  : “ Now,  according  to  the  laws  and  trea- 
ties of  the  United  States,  it  was  both  lawful  for  this  seaman 
to  come  into  this  port  in  this  vessel  and  for  the  captain  to 
bring  him  in  the  capacity  of  a seaman.”  But  his  Honor 
was  greatly  in  error,  for  there  was  a law  of  the  United  States 
which  prohibited  Elkison  from  coming  in  any  capacity 
whatever. 

In  February  1803  an  Act  of  Congress  was  passed,  the 
first  section  of  which  is  in  these  words : “From  and  after 
the  first  day  of  April  next,  no  master  of  any  ship  or  vessel, 
shall  import  or  bring  any  negro,  mulatto  or  other  person  of 
color  (not  being  a native , a citizen,  or  registered  seaman  of 
the  United  States,  or  seamen  natives  of  countries  beyond  the 
Cape  of  Good-Hope)  into  any  port  or  place  of  the  United 
States,  which  port  or  place  shall  be  situated,  in  any  State, 
w hich  by  law  has  prohibited,  or  shall  prohibit,  the  admis- 
sion of  such  negro,  mulatto  or  person  of  color,”  &c.  Thus 
stands  the  act  of  Congress,  the  obvious  design  of  which  is 
to  give  effect  to  the  State  Laws  on  the  subject.  Is  there  then 
any  law  of  this  State  which  at  present  prohibits  colored  sea- 
men from  coming  into  its  limits?  The  answer  is  given  by 
Judge  Johnson  himself  in  his  opinion.  All  his  reasoning, 
nay  his  whole  opinion,  is  built  upon  his  declaration,  that 
the  State  Act  is  a prohibition  to  all  intents  and  purposes. — 
His  words  are  “ that  it  amounts  to  the  assertion  of  the  power 
to  exclude  the  seamen  of  the  territories  of  Great  Britain, 
or  any  other  nation  whatsoever.”  Again,  “ in  its  present 
form  it  amounts  to  an  actual  exclusion .”  It  is  again  also 

said  for  the  Judge  by  Philonimus,  that“  the  Act  of  Congress 
of  1803,  relied  on,  does  sanction,  not  only  existing,  but 
future  laws  of  the  State,  excluding  colored  seamen  of  the 
description  of  Elkison  ; the  words  being,  has  prohibited, 
or  shall  prohibit ; thereby  giving  the  State  Act  of  1822 
force  as  to  all  colored  seamen,  not  expressly  exempted.” — 
Here  then  we  have  an  express  acknowledgment,  first  by  the 
J udge  in  propria  persona,  that  the  State  law  of  1822,  is  a 
prohibitory  law,  and  then  in  Philonimus,  that  this  Act  is 
sanctioned  or  recognised  by  Congress. 


76 

The'Statc  Act  of  1 822  beingthus  recognised,  and  made  the 
Act  of  Congress,  and  Elkison  not  being  one  of  the  persons 
excepted  in  the  Act  of  1803,  (the  exception  therein  contain- 
ed, relating  only  to  Northern  seamen,  and  seamen  beyond 
the  Cape  of  Good  Hope)  let  us  now  see  how  the  Judge  and 
P/nlotiimus  are  to  get  over  the  difficulties  into  which  such 
an  acknowledgment  involves  them.  Philonimus  gravely 
tells  us,  that  the  treaty  was  made  before  the  State  law.  His 
words  are,  “ still,  however,  even  in  Elkison’s  case,  and  that 
of  British  seamen  generally,  the  question  under  the  treaty 
remains.  The  ground  was  unoccupied  by  the  State  law  at 
the  time  of  the  British  treaty  of  1818.  It  was  occupied  by 
that  treaty,  when  the  State  law  was  passed,  and  a spirit  of 
moderation  would  point  out  the  propriety  of  abstaining  from 
the  practical  application  of  our  construction  of  the  proviso 
fin  the  treaty)  until  the  two  governments  can  come  to  an  un- 
derstanding upon  it.”  The  reasoning  then,  of  Philonimus 
is  neither  more  nor  less  than  this — The  treaty  is  only  to  be 
subject  to  such  laws  of  the  two  countries,  as  existed  at  the 
time  of  its  date  or  ratification.  But  this  is  a subterfuge  un- 
worthy to  be  resorted  to  by  a man  pretending  to  law  know- 
lege.  What  are  the  words  of  the  proviso  ? They  are,  that 
liberty  of  ingress,  for  the  purposes  of  commerce,  “ shall  be 
subject  always  to  the  laws  and  statutes  of  the  two  countries 
respectively”  What  is  the  obvious  meaning  of  the  word 
“ always  ?”  At  that  time  is  it,  or  at  all  times  ? The 
meaning  is  clear  and  indubitable.  It.  is  to  be  constantly  or 
perpetually,  that  is,  during  the  continuance  of  the  treaty, 
subject  to  the  laws  of  the  two  countries.  Whatever  question 
might  arise  under  the  treaty,  its  provisions  at  the  time  of 
such  question  occurring,  must  be  subject  to  the  existing  laws 
of  the  two  contracting  parties.  But  had  the  word  “ always” 
been  omitted,  such  would  be  the  fair  and  liberal  construction. 
Could  Great  Britain  pretend  to  contend  for  a contrary  inter- 
pretation ? If  she  did,  what  would  become  of  her  alien 
law  that  she  passed  last  year,  since  this  treaty  was  signed. 
Could  she  complain  of  an  act  of  our  Legislature,  sanctioned 
and  made  the  law  of  the  United  States,  which  is  in  nature  of 
an  alien  act,  when  she  herself  had  enacted  one,  infinitely 
more  severe  and  penal.  Which,  I ask,  is  the  most  penal? 
Cor  a white  bona  fide  citizen  of  the  United  States,  to  incur 


77 

die  penalty  of  death  or  transportation  as  a convict  for  7 or 
14  years,  to  the  South  Seas,  if  he  dares  to  return  to  England, 
after  being  once  warned  to  depart  the  kingdom ; or,  for  a 
mulatto  seaman,  to  be  sold  under  our  act;  If  the  captain 
refuses  to  take  him  away,  or  he  himself  does  not  quit  the 
State,  after  regular  notice  to  that  effect.  But  the  in- 
consistency of  Philonimus  is  glaringly  displayed  in  his 
answer  to  Philo-Caroliniensis.  It  now  suits  his  purpose 
to  say,  that  the  laws  which  existed  at  the  time  of  the  trea- 
ty, are  the  only  laws  embraced  in  the  proviso.  But  he 
did  not  hesitate  to  say  the  reverse  of  this  in  his  other  num- 
bers. By  his  number  9,  in  his  answer  to  that  part  of  Caro- 
liniensis,  in  which  C.  maintains,  that  the  rights  of  navigation 
by  the  treaty,  could  not  give  to  one  party,  the  right  so  to 
navigate  his  vessels,  as  to  make  it  inconvenient  or  dangerous 
to  the  other,  Philonimus  expressly  answers  in  these  words : — 
“ What  doubt  can  be  entertained,  that  the  contracting 
parties  to  the  commercial  convention,  have  retained  the 
right  to  pass  what  navigation  laws  they  please.  The  only 
obligation,  they  have  laid  themselves  under,  is  to  extend  to 
each  other,  all  the  advantages  of  the  most  favored  nation. 
Does  it  follow  from  this,  that  the  States  shall  have  power  to 
pass  navigation  laws  for  them  both  ? To  impose  upon  them 
a rule  as  to  the  Seamen  they  shall  employ  ?” 

Is  not  this,  I ask,  an  indubitable  concession,  that  though 
the  States  could  not  pass  navigation  laws,  or  impose  upon 
Great  Britain  a rule  as  to  the  seamen  she  should  employ  ; yet, 
that  either  of  the  contracting  parties  to  the  treaty  could  do 
so  as  to  the  other.  Does  not  Philonimus  say,  totidem  ver- 
bis, that  both  parties  retain  the  right  to  pass  what  naviga- 
tion laws  they  please  ; and  does  not  Judge  Johnson  regard 
the  regulation  of  seamen  as  incident  to  navigation  and  com- 
merce. Have  not  the  United  States  exercised  the  right  of 
imposing  upon  Great  Britain,  a rule  that  she  is  not  to  bring 
her  colored  seamen  into  our  Southern  ports  ? Has  it  not 
been  exercised  in  the  State  Act  of  1822,  which  A.ct  Philo- 
nimus acknowledges  to  be  the  law  of  the  United  States  a- 
gamst  all  colored  persons  who  do  not  fall  within  the  excep- 
tions under  the  law  of  the  United  States.  And  does  he  re- 
gard Elhison  as  an  exception  upon  any  other  ground,  than 
that  the  treaty  happened  to  be  made  before  the  State  Apt 


78 

was  passed,  which  ground  I have  shewn  from. his  own  word* 
fails  from  under  him. 

All  this  has  Philonimus  conceded.  But  let  us  not  forget, 
that  this  concession  was  made,  when  he  and  the  Judge  were 
ignorant  of  the  Act  of  Congress  of  1803.  Had  Philonimus 
then  known  that  the  State  law  of  1822,  was  at  the  moment 
of  his  writing  the  above  passages,  the  law  of  the  United 
States  pro  tanto.  he,  probably,  would  not  have  made  this 
confession.  Now,  which  of  Philonimus’s  assertions  shall 
we  take?  His^rsf  position,  that  both  parties  notwithstand- 
ing the  treaty,  retained  the  right  to  pass  what  navigation 
laws  they  pleased,  without  infringing  its  stipulations;  or  his 
present  assertion,  that  the  treaty  is  to  be  subject  to  no  laws 
but  those  which  existed  at  its  date.  Shall  we  infer  with  him 
in  his  No.  9,  that  the  right  of  ingress  given  by  the  treaty, 
does  not  hinder  the  United  States  from  imposing  what  rule 
they  please  as  to  the  seamen  which  England  shall  not  bring 
into  our  ports ; or  shall  we  now  take  his  present  counsel,  to 
abstain  from  the  practical  application  of  our  construction  of 
the  proviso  until  the  two  governments  can  come  to  an  un- 
derstanding upon  it  ? Men  who  write  much,  ought  to  have 
very  long  memories. 

But  some  persons  have  said,  that  this  Act  of  Congress  of 
1803,  is  a two  edged  sword — It  cuts  both  ways.  If  it 
interdicts  the  admission  of  Elkison,  it,  at  the  same  time 
admits  Northern  negroes  into  our  ports,  and  the  admission  of 
these  last  is  the  greater  evil  of  the  two.  The  answer  is  this : 
Congress  does  not  by  the  Act  in  question,  confer  on  the  na- 
tive and  registered  soamen  of  the  United  States,  a positive 
right  or  privilege  to  come  into  our  ports  against  our  will, 
nor  can  any  such  right  fairly  be  implied.  Philonimus  it 
may  be  seen  has  taken  up  this  idea,  from  the  questions  which 
he  puts.  “ Why,  says  he,  was  the  Act  of  Congress  necessa- 
ry, if  the  State  possessed  the  power  without  it?  or  how 
could  the  United  States  discriminate  if  the  State  power  was 
unlimited?’’  I will  answer:  The  Act  of  Congress  bears 

no  such  construction.  Congress  would  not  attempt  to  pass 
any  such  Act.  The  design  of  the  Act  was  simply,  to  aid 
the  States  in  doing  that  which  Congress  approved  of.  The 
power  of  Congress  to  pass  a law  concurrent  with  a State 
authority,  may  be  undisputed,  but  it  does  not  follow  that  the 


79 

same  body  could  pass  an  Act  to  have  a contrary  operation. — 
This  State,  for  instance,  can  prohibit  slaves  from  being  im- 
ported from  Africa,  and  may  pass  an  Act  with  severe  penal- 
ties on  the  subject.  So  can  Congress  prohibit  the  importa- 
tion, in  any  way  and  by  any  penalties  it  pleases.  Congress 
has  done  so  in  fact.  But  yet  Congress  would  not  have  the 
power  to  permit  the  introduction  of  slaves,  jf  we  should 
choose  to  shut  our  ports.  So  it  is,  with  the  two  Acts  in 
question.  The  State,  at  a time,  when  she  alone  had  the 
power  to  shut  or  open  her  ports,  chooses  that  no  free  negroes 
or  slaves  shall  be  brought  within  its  limits.  Congress  ap- 
proving of  such  a determination,  and  knowing  that  if  offen- 
ders should  escape  detection  from  the  State  authorities,  yet 
they  probably  might  not  elude  the  authority  or  vigilance  of 
the  revenue  officers  of  the  United  States,  also  in  1803,  passes 
its  law.  The  design  is  to  aid  the  State  in  enforcing  its  acts. 
But  as  the  laws  of  some  of  the  States  might  exclude  all  per- 
sons of  color  indiscriminately,  (as  does  the  State  of  South- 
Carolina)  whether  natives  of  the  Northern  States  or  not,  it 
was  very  natural  for  Congress  in  its  act  to  discriminate.  It 
was  simply  and  plainly  using  towards  our  own  particular 
State  this  language.  “ We  approve  of  the  general  object  of 
your  laws,  and  as  we  are  interested  as  well  as  yourselves  in 
limiting  the  evil  of  slavery,  and  of  a free  colored  population, 
we  will  go  hand  in  hand  with  you ; but  there  are  some  parts 
of  your  excluding  act  which  we  cannot  approve  of,  and 
these  parts  we  cannot  introduce  into  our  act,  to  be  passed 
on  the  same  subject.  We  are  willing  to  impose  heavy 
penalties  upon  captains  of  vessels  for  bringing  into  your 
ports  slaves,  or  some  of  the  free  persons  of  color  whom  you 
Would  exclude  as  dangerous  to  yourselves ; but  as  to  the 
native  or  registered  seamen  of  the  Northern  States,  we  can- 
not think  of  giving  you  our  aid  in  the  exclusion  of  these. 
It  would  not  become  us,  who  represent  the  interest  and 
feelings  of  the  Nothern,  as  well  as  the  Southern  sections  of 
the  Union,  to  pass  or  recognize  any  such  an  act,  nor  could 
we  include  seamen  beyond  the  Gape  of  Good  Hope.  As  to 
all  others,  free  negroes  or  persons  of  color,  British,  French, 
or  otherwise,  from  the  West  Indies  or  elsewhere,  we  will  aid 
you  to  the  utmost  of  our  power,  by  imposing  a penalty  upon 
the  captain,  or  by  a seizure  of  the  vessel.  But  as  to  the 


80 

Northern  seamen,  whom  we  wish  to  except  in  our  act,  wfi 
shall  not  use  United  States  authority  as  against  these.”  How 
easy  it  is  to  explain  what  at  first  seems  to  he  attended  with 
difficulty.  Is  it  not  perceived  that  the  Act  of  Congress  gives 
no  right  to  Northern  seamen  to  come  here,  but,  merely  re- 
fuses to  recognize  or  lend  its  aid  to  enforce  that  part  of  the 
State  law  which  would  exclude  them.  The  act  is  nothing 
more  than  an  act  of  courtesy,  voluntarily  tendered  by  the 
General  Government,  to  such  States  as  they  thought  might 
need  the  vigilance  of  the  United  States,  vessels  and  civil  offi- 
cers, to  give  greater  effect  to  their  laws  on  this  subject.  As 
to  the  Lascars  and  Judge  Johnson’s  fine  Nantucket  seamen,* 
who  of  course  are  included  in  the  exception  to  the  Act  of 
Congress,  these,  never  were  subject  to  any  of  our  laws- 
against  persons  of  color. 

That  part  of  Judge  Johnson’s  opinion  in  which  he  extra- 
judicially  considers  an  East-Indian  or  Nantucket  Indian,  or 
a free  Moor,  as  a person  of  color,  within  the  meaning  of  our 
act  against  persons  of  color,  is  palpably  erroneous.  Both 
principle  and  practice  are  opposed  to  it.  A few  days  ago,  a 
man  of  color  who  arrived  from  New-York  in  the  Franklin , 
was  taken  into  custody.  He  no  sooner  produced  an  official 
certificate  from  our  Court,  that  he  was  born  of  a free  Indian 
woman,  than  he  was  instantly  discharged  by  the  deputy 
sheriff.  How  delightful  it  must  be  to  every  friend  of  South- 
Carolina,  to  find  that  the  more  this  subject  is  discussed,  the 
higher  is  the  ground  upon  which  our  rights  are  to  be  placed. 
The  whole  ear  of  the  United  States,  has  it  is  true,  been  most 
rankly  abused.  But  let  us  not  despair.  Our  brethren  at 
the  North,  when  they  come  to  see  the  whole  ground  occu- 

Eied  by  us,  will  not  be  disposed  to  blame  us  for  what  we 
ave  done. 

*Tbe  Nantucket  Indian  Seamen,  whom  the  Judge  in  his  opinion 
calls  the  finest  in  our  service,  are  not  to  be  found.  The  Nantucket 
Editor  tells  us  that  there  is  only  one  Indian  in  the  Island  of  Nantucket, 
containing  8000  souls. 


CHARLESTON:— PRINTED  BY  A.  E.  MILLER. 


